Art. 50 – Government’s Written Case in support of its appeal

As mentioned in Thursday’s update, the Government has agreed to make its Case available to the public. It can now be read here.

The Government’s Case maintains that an Article 50 notification cannot be withdrawn, adding that the Court can deal with the appeal without having to decide that issue definitively. It does not claim the Referendum was binding or gave it any new power to invoke Article 50, a point conceded during the Divisional Court hearing. There is also now no suggestion that the Courts lack jurisdiction to decide the case.

But there are many subtle shifts of emphasis and new points taken. Most significantly, an argument only raised briefly in the Divisional Court – that EU Citizenship rights are similar to those agreed at an international level in ‘double taxation’ treaties – is now front and centre. The Government argues the European Communities Act 1972 is an ‘ambulatory’ or ‘conduit’ Act of this kind. It says that, when the 1972 Act was passed, Parliament must have intended ministers could use the Royal Prerogative to negotiate and reach agreements with other European states that would grant rights to UK nationals – or strip them away altogether – without further Parliamentary authority or control and that section 2(1) of the Act would be the ‘conduit’ through which they became part of UK law, or were removed from it.

Our team are already analysing this and other points so they can be forcefully countered in our own case. A further update from them next week will unpack the Government’s Case in more detail.

Meanwhile, a group of Conservative MPs has argued that the Government should withdraw its appeal and submit to Parliamentary control and scrutiny. It seems most unlikely that this will happen –the written case shows the government is determined to make its last stand on its Royal Prerogative arguments.

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