UK government lawyers are exploring the possibility of arguing in the nation’s supreme court that Article 50 could be reversed by parliament at any time before the nation completes its exit from the EU.
Prominent academics have told the Guardian they know lawyers have been sounded out by the government’s legal team about the potential change of tack, which some argue would lead to a victory in the case brought by Gina Miller and other campaigners.
“I know that the issue of revocation [of Article 50] is a live issue in terms of the supreme court hearing,” said professor Takis Tridimas, an expert in EU law at King’s College, London, adding that he had heard that the government had commissioned research on the subject.
Earlier this month, the high court ruled that the government could only invoke Article 50, which begins the EU exit process, through a parliamentary vote. The case was decided on the basis that, once Article 50 was triggered it was irreversible and British citizens would inevitably lose rights granted through the 1972 European Communities Act.
Royal prerogative powers — the government’s executive authority — cannot be used to repeal rights granted by parliament, the three high court judges concluded in their ruling, which was sharply criticized by several tabloid newspapers, including the Daily Mail which described the judges as “enemies of the people.”
If the government argued that MPs could vote to revoke Article 50 during the exit negotiation period, some academics say, the outcome of the government’s appeal to the supreme court would be different, because it would imply that the sovereignty of parliament had not been removed.
“If the government decides to — and is allowed to — argue that the Article 50 notice can be revoked, then it is all but sure to win in the supreme court. In those circumstances it cannot be said that, once the trigger has been pulled, the bullet will inexorably hit the target and expunge our rights under the European Communities Act 1972,” said Eirik Bjorge, a senior law lecturer at Bristol University and an expert in EU law.
The government has already submitted its initial grounds for appeal at Britain’s supreme court. The papers do not indicate any shift of emphasis so far in the way the case will be presented, although it is possible that could change before the hearing next month.
A government spokesman said: “Our position is clear: the country voted to leave the EU and we will respect the will of the British people. The government told the high court that as a matter of firm policy, once given, the Article 50 notice would not be withdrawn. Because legal proceedings are underway it would not be appropriate to comment further.”
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