Article 50 Challenge

by Elizabeth Webster

Article 50 Challenge

by Elizabeth Webster
Elizabeth Webster
Cardiff born Liz grew up in Porthcawl. In 2007, her son was attacked and left brain damaged, Liz campaigned for social cohesion. She feels a single consultative referendum is no basis to leave the EU
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Elizabeth Webster
Cardiff born Liz grew up in Porthcawl. In 2007, her son was attacked and left brain damaged, Liz campaigned for social cohesion. She feels a single consultative referendum is no basis to leave the EU
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Did David Davis know he was asking Parliament the wrong question?

Nov. 19, 2017

In Miller, the government’s own lawyers said that if they lost:

“Parliament must be asked to answer precisely the same question which was put by Parliament to the electorate and has been answered in the referendum, and must give the same answer in legislative form.”

They didn’t do that or try to do that.

As Jo Maugham QC said on 26 January referring to the newly published N...

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The invalidity of the current Article 50 process


"Oh! What A Tangled Web..." Was the June 2016 referendum a decision?



"The UK is confronted by the greatest set of problems and difficulties it has faced since 1940 because of Brexit. Based on careful study, a group of lawyers, academics and business people have concluded that the triggering of Article 50 was incorrectly done. The UK and the EU are involved with an expensive and elaborate Brexit process which may be predicated on a mistaken and illegal basis. Article 50(1) clearly requires a valid decision to be made before the mandatory notification to leave the EU can be issued. The government made sure the referendum could never be such a decision whatever the result, specifying it as advisory only. Parliament was not asked to make the decision. With no formal decision, the process is invalid."

Professor A. C. Grayling, Master

We are seeking to challenge the validity of the Article 50 process in the courts.

If the facts of the Brexit process were put into a novel, they would be seen as so improbable as to be unworthy of publication.  But it is true to say that the process has been so badly managed that in our view, there is simply no clearly valid decision to leave the EU which satisfies Article 50(1).

Doing nothing is not an option, not least because the whole process may be found invalid at the end when the validity of Brexit is vetted by the ECJ (see here).

That is why in supporting the action, Professor Grayling says:"The only way to resolve the question, for the benefit of leavers and remainers alike, is for a court to decide whether or not a valid decision was taken before the Article 50 notification of 29 March 2017. That is why we are taking this action and seeking funding to support it."

Legal Argument

Article 50 is an exit clause.  As with a contract termination clause, to use it, you must tick all its boxes.  The A50 exit clause is very simple.  There’s only one box to tick – was the actual leave decision itself constitutionally valid.  A50 is not remotely interested in whether the notification is authorised.  It’s interested only in the actual decision – if there is one, notification of intention to leave is mandatory.

Had the 2015 Referendum Act made the poll binding, there would be no issue.  But, whatever politicians say, the Act is silent on the effect of the result.  So, the June 2016 referendum was no more than a big opinion poll.  (See here.)  So, when politicians say that “the United Kingdom has decided to leave the EU” in June 2016, that is inaccurate.  The Act Parliament chose to pass gave it no effect.  Politicians won’t admit that they made sure it wasn’t a decision after saying otherwise, but that’s why the government lost Miller.

As Margaret Thatcher said about the 1975 referendum – “the [1975] referendum is a tactical device to get over a split in their own party, and any constitutional consequences are, therefore, of only secondary importance.” See more at https://www.margaretthatcher.org/document/102649

If referendums are consultative, candour about that fact is crucial.  Rather than squarely confront the need for Parliament to decide the leave or remain issue, the government asked Parliament for authority to notify a decision already made!  As their own lawyers in Miller had said, to do Brexit, they had to answer the leave or remain question in favour of leave and put it in clear words in legislative form.  They didn’t even ask the question.

Immediately after the Supreme Court ruled that no decision had been made – the government took the “decision” as read.  Speaking about the rushed Brexit Bill, David Davis could not have been clearer that it was nothing to do with Leave or Remain.  He said, that it was: "not a Bill about whether the UK should leave the European Union or, indeed, about how it should do so; it is simply about Parliament empowering the Government to implement a decision already made—a point of no return already passed.”

The Explanatory Notes of the Act as it now is (see here) confirm what this.

On this issue, Professor Grayling says: “We feel that the difference between the asking Parliament to make the actual decision and asking Parliament for permission to notify a decision already made is not technical, but fundamental”

Although this action will inevitably add to the growing feeling that the whole issue of Brexit must be revisited, the action is only about the validity of the current process, not whether the UK should leave the EU.  That said, if successful it is true that the process would have to be started afresh (including a new notification and a resetting of the clock) if the UK is to leave the EU.

In 2015 Parliament passed an Act for a referendum on leaving the EU, making sure that it was just a temperature test of opinion – an opinion poll. Contrary to what politicians say, the Act did not delegate the decision to the people

In direct contradiction to the real position created by their own Act, in 2016, David Cameron and other politicians led the public to believe that the referendum was decisive and that even a one-off simple majority was enough

In Miller the Supreme Court confirmed the true position – the referendum was a big political event, but not decisive of anything as the Act gave no status to the result. As the Government’s own lawyers said, Parliament had to be asked the same question as the referendum question and answer in favour of Leave in legislative form

In an act of breath-taking and rushed defiance, David Davis produced a bill (as enacted https://www.legislation.gov.uk/ukpga/2017/9/contents/enacted) which took the Article 50(1) decision as read and merely asked for permission to notify a decision "already made

If you care about the United Kingdom, its nations, its businesses and people, whether you are a Remainer who does not want Brexit at all, or a Leaver who wants Brexit done with due process, we invite you to support our campaign.

To be viable, Brexit has to be both politically legitimate and valid under international law.  There is a danger that it is neither, but we are solely concerned here with validity.

We believe this is a landmark case. If we don’t deal with this now, when the Brexit deal is reviewed by the European Court of Justice at the end of the negotiating period the whole withdrawal process could collapse.

This issue has been raised previously in the Welsh Assembly – see http://www.senedd.tv/Meeting/PreviewEmbedCode/16ec9493-7f4b-48c4-9a3d-a7618a9852f3?width=640&height=360&inPoint=1:10:05&outPoint=1:13:11

Invalidity means the UK won’t leave the EU in March 2019. Also, any withdrawal agreements will be void - if any are agreed at all. This means the issue must be addressed before the matter is referred to the ECJ at the end.

We are assembling a high-class team. It will be led by a leading QC and supported by a very experienced junior and a leading regional firm. The issue is so simple that it inevitably attracts initial incredulity and scepticism.  We are aware that the case may not succeed, but even if it doesn’t, it highlights the lack of process which has characterised the whole Brexit process and could reopen the debate.  That said, we believe our prospects of success are very good.  While we are realistic, no counter-argument advanced since January 2017 alters our view that a valid decision is required under Article 50(1), that the government have failed to even ask for such a decision, extraordinary though that may sound.

The UK courts will be asked to address the one question which they can answer, namely whether the United Kingdom decided to withdraw from the EU in line with its constitutional requirements?

The funds 

We are seeking an initial sum of £40,000.

We anticipate that this will be sufficient to commence the action and to undertake substantial preparations. However, we anticipate that fundraising will be an ongoing process until the matter is concluded.

Any surplus money raised will be held to pursue the same matter in a different way (if the current proposed mechanics are changed for any reason) or in any other reasonable way or to the same end.

FAQ

Q: Why was a decision by Parliament necessary?

A: Parliament decided to make the EU referendum consultative, and made no provision for what should happen in the event of a Leave (or even a Remain) vote. This meant that the formal decision whether to Leave or Remain still had to be made by an Act of Parliament. As the Government made clear, the European Union (Notification of Withdrawal) Act 2017 was nothing to do with that decision.

Q: Why did David Davis not seek a decision in his Brexit bill?

A: Only he can answer that, but there are various theories. We are confident that the government knew about the requirement for a decision but must have believed that they could get away with authority to notify a decision already made. Maybe they read Miller very literally rather that starting with Article 50(1) then extracting the underlying rationale for Miller to interpret “constitutional requirements”.  In Article 50, the “constitutional requirements” apply only to the substantive decision, not the notification of the decision which is mandatory.  It was also clearly very rushed.  Theories also include a feeling that Parliament would not want the responsibility for the actual decision, but would prefer to authorise notification of a “decision already made”.  We shall never know, but Parliament would probably have made the decision at the time, perhaps with a smaller majority and perhaps with amendments so it could have been a very different Act. Warnings were issued at the time of the risks however https://www.theguardian.com/law/2017/jan/23/lawyers-warn-may-against-short-brexit-bill-if-supreme-court-says-vote-is-needed

Q: What are the chances of success?

A: We are confident that the case is, at worst, strongly arguable and at best has very good prospects of success. We feel very confident in the case and intend, as we always have, to prosecute it to the very end if necessary.

Q: Who are you?

A: We are a group of private individuals – lawyers, professionals, and academics, including Professor A.C. Grayling – who are alarmed at the disorderly way in which the UK is approaching the critical issue of Brexit as exemplified by the facts of this case.

Q: How else can I help?

 A: Please spread the word as widely as possible on Facebook, Twitter, other social media and elsewhere, using the hashtag #A50Challenge


Did David Davis know he was asking Parliament the wrong question?

Nov. 19, 2017

In Miller, the government’s own lawyers said that if they lost:

“Parliament must be asked to answer precisely the same question which was put by Parliament to the electorate and has been answered in the referendum, and must give the same answer in legislative form.”

They didn’t do that or try to do that.

As Jo Maugham QC said on 26 January referring to the newly published Notification Bill - "at a momentous moment like this, it’s an awfully odd way to legislate. It might be an idea for the Government to amend its own Bill."

After Miller, the Government was supposed to ask Parliament for the actual decision to leave the EU and to put it in legislative form because Miller ruled no valid decision had been made.  It is that decision and that decision alone that enables Article 50 to be triggered.

Instead, they asked for authority to notify a decision with David Davis, Lord Bridges and Baroness Evans claiming that the decision had already been made – when the Supreme Court had just said it hadn’t!  Article 50 doesn’t require the notice to meet any requirements so there was no need to ask Parliament to approve that.

Did they know they were asking for the wrong thing?  At the very least, they must have known they were taking a massive gamble, because:

  • Article 50 makes it abundantly clear that the Miller requirements apply to the actual Leave v Remain decision – it’s not concerned with the technicality of the authorising of the notification
  • On 26 January, Jo Maugham published this article containing the above quote https://waitingfortax.com/2017/01/26/does-the-governments-brexit-bill-work/
  • Their own lawyers had said what was required.
  • Many people wrote in to point out the defect in the bill and were ignored.

So, there is no doubt that they must have known it was a gamble.  After just losing a court case, surely a "belt and braces" approach was called for instead of trying to get away with asking Parliament to approve a technical step and saying that was all they needed to do.

When people drew their attention to the mistake, they probably weren't keen on correcting it because they knew that the alternative was asking Parliament to make the Leave v Remain decision and that Parliament wouldn’t want to be responsible for it. Also, they had told the people it was their decision and that a one-off simple majority was enough, and they didn’t want to admit that they had misled the people in that regard.

Why did they decide to take that risk?  They must have thought that once the notification was done they were safe, but that is not correct and with all the advice at their disposal, it's astonishing if that is what was thought - a valid decision is the legal foundation not only of the notification, but everything that follows.  At any time, the whole thing can be ruled invalid. The validity of any withdrawal agreement and transitional deal depends on it.  Those that don’t want this case to be brought effectively want the UK to leave the EU based on potentially void agreements - that would hardly be responsible.

Oh what a tangled web indeed!

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Thank you for the amazing support.

Letter of claim gone today and new target

Nov. 16, 2017


Letter of claim gone today to put Parliament back in control

A letter of claim has gone out today.  It sets out the remedy required which is a declaration that there has been no valid decision to leave the EU.  The devolved administrations have been cited as interested parties and copies have gone for information to EU institutions for information.

A response is required in 14 days and the action will be commenced shortly after that.

The new target

Doing a case like this must be done properly with no cutting of corners.  We have a top quality legal team and the case may have several stages.  It's foreseeable that it will go to the Supreme Court and there may be an ECJ reference too.  So total costs may be very be several £100,000.  We are confident to proceed based on the initial response and so will be raising money based on series of stretch targets and may do a separate campaign for the Supreme Court if it got there.

Each stretch target is what we think we need in each period to enable us to go to the next one.

Costs for the high court may be as high as £200,000.  We hope it won't but have to be ready for costs of that magnitude.

Therefore, the stretch target will be £125,000 from 17 November 2017 and we need to hit that in 30 days or less.

Put Parliament back in the driving seat with Article 50 Challenge.

Nov. 15, 2017

The aim of the Article 50 Challenge is to put Parliament back in the driving seat.  It can stop this Brexit in its tracks.  We say that it must now become plan A for all. Lord Kerr’s suggestion of revocability is not a substitute for our challenge but a last resort which relies on a government U-turn as Parliament can't block a no deal whatever the Withdrawal Bill says.**  The government may revoke, but you are reliant on the government and the EU agreeing - which is possible.

Rely on revocability and the executive has whatever controls are available, succeed on invalidity and you put the legislature in full control. 

The revocability arguments has caused confusion which needs clearing up.  Plan A is still to stop the whole thing in its tracks by arguing the process is invalid forcing a reset for the benefit of all - it’s clear that the only Brexit that is now possible is a disastrous Brexit so everybody, leavers and remainers alike need rescuing.

Revoking relies on persuading the government and there's no sign of it happening under the Conservatives or Corbyn.  Certainly,  no reliance can be placed on it.

So we must stay focused on A50 Challenge and we can only do this with your ongoing support throughout so please continue to do all or some of the following: 

 Here’s a summary of the differences

PLAN A INVALIDITY (A50 Challenge)*

PLAN B REVOCATION (Lord Kerr’s point)

It stops this Brexit in its tracks without further ado – as it was never valid

A50 still valid, but needs the government to try to undo it - by agreement with the EU, or unilaterally (tricky given A50(3))**

Removes the tyranny of the ticking clock and the seemingly inevitable “no deal” exit 

Parliament can’t force revocation as it’s approved a “no deal” Brexit if A50 valid already under EUNOW 2017**

Puts Parliament back in the driving seat

If the government decides to revoke, it probably can do as they EU has said so

The climate is such that Parliament is unlikely to restart the whole process without a new mandate from the people

The easiest way is by agreement and the EU has already indicated that’s’ possible

If Brexit is to happening, it must happen with due process around the decision and the process or we’ll remain and a healing process can begin

The hardest way is a one-sided decision to revoke.  There is no right written into Article 50, but some lawyers believe it’s possible**


* assuming a win

** as A50 has a default no deal and there's no revocability written in for obvious reasons, so on the face of it, there can be no unilateral revocation and Parliament can't stop a "no deal", but there are lawyers who argue otherwise, but it's not an easy argument.

The government thinks we have a compelling case.  Well they haven’t said so, but that’s the only possible explanation for the fixed exit day (see previous note).  It’s not going to be easy, the enormity of the decision makes it difficult, but we are advised that permission is highly likely, and we have a substantial chance of success - we are yet to hear a compelling argument against the points we make.

So you wouldn't walk out of your job and rely on a lottery ticket. In the same way, relying on revocation is relying on the government so the Article 50 Challenge is just as crucial if not more so for the future of the United Kingdom and it's constituent nations.

"Exit day" blues? Not any more! Letter before action to go out this week

Nov. 13, 2017

Thanks to your help, as we hit our £75,000 target this week, we'll have all the confidence we need that we have the backing to go all the way and the letter of claim will go out.

Then, we have to allow a short time for reply and assuming that there's no unexpected settlement - mmm - then action will be launched formally at the earliest opportunity to stop this broken Brexit.

We can only do this with your ongoing support throughout so please continue to do all or some of the following: 

We'll update you further later in the week.  Please keep up your good work and thank you so much for your generous help.

Making history together!

Why is Theresa May’s Fixed Exit Day Significant?

Nov. 10, 2017


  • Exit day in the Repeal Bill
    • ‘Exit day’ was defined in Repeal Bill as a date to be chosen by Ministers instead of as the day we leave the EU under Article 50 - the obvious "exit day" if the process is valid
    • Theresa May is today saying it will be “hard wired” as 29 March 2019 - again instead of the day we leave the EU under Article 50
  • But WHY is she doing this, really?
    • Article 50 is explicit - Exit day is by default 2 years from notification of decision.
    • It could be earlier if by some miracle an agreement is found
    • It could be later if all parties agree that more time is needed
  • ALL of those cases are covered by Exit day being defined as “the day the Treaties cease to apply to the UK”
    • Covers all eventualities and doesn't happen if there's no validity so it does no harm in that case
    • Ensures perfect synchronisation between exit from EU and copied and pasted laws coming into effect
    • Is clear, unambiguous and binding…
  • UNLESS
    • The Government is not confident that a treaty-compliant exit process is actually underway
    • If they believe that there is a problem with the validity of the A50 notification due to a lack of an Article 50(1) decision by Parliament, a lawful "exit day" will never happen unless they start from scratch and that the political and popular will no longer be there to do that
    • By hard-wiring a date the Government can force a unilateral, non-A50 compliant Brexit and continue to allow Parliament and the public to believe that only an Article 50 Brexit is being contemplated
  • Speculation
    • Government is believed to have requested and received from Government legal advisors secret legal advice “on the revocability of A50”
    • They are understandably reluctant to release it
    • What if: that advice actually covers the validity question, as alluded to by Bill Cash in the commons on 14 March 2017 
  • We don't know the answer to that, but all of this suggests that the Government is very worried about the validity of the process.  They must be concerned by the issues raised by #A50Challenge and has been since March or earlier but it would be too humiliating to have addressed them at that time and tell Parliament that they had made a mistake and Parliament had to decide Leave v Remain first and put the decision in clear words in the Bill. 

Either the "exit day" is the day we leave the EU validly or, if different, a date that Parliament approves under primary legislation passed nearer the time.

All this shows how crucial it is we can fund this to the Supreme Court, including an  ECJ reference if required so your support is so important and will continue to be so all they way through.

Nobody voted for this and this action is being brought in the interests of all of us, leavers and remainers alike.





Hugh Mercer QC and Gwion Lewis announced as being instructed to represent the Article 50 Challenge

Nov. 8, 2017

Thanks to your generous support in helping us reach the initial target, we are delighted to be able to announce that Hugh Mercer QC of Essex Court Chambers and Gwion Lewis of Landmark Chambers are instructed on this matter and that the work on the pre-action protocol has commenced.

The first £40,000 enables us to commence the action, but further funds are required to ensure that we can see this through and so your help in reaching the £75,000 stretch target as soon as possible will be of crucial importance.

We shall need to raise further funds in due course, and shall update you further on this as the matter progresses. If you can pledge more, that’s always appreciated, but please don’t pledge what you cannot afford to give. You can help by emailing 5 friends, tweeting with the hashtag #a50challenge and sharing the https://www.crowdjustice.com/case/a50-chall-her-e50/ link on Facebook, Messenger and WhatsApp etc

We've hit the £40,000 initial target early!

Nov. 2, 2017

Thanks to all our donors, we've hit the initial target over 2 weeks before the deadline!  That sends a very clear signal and we have moved to the stretch target.

The funds are being put to good use immediately and a conference between solicitors, our QC and junior counsel is taking place next week where the next steps will be agreed.  While we want to begin as soon as possible, we are committed to doing things properly and so we cannot commit to specific timelines or give a "running commentary" on everything -  that sounds familiar!  We shall however aim to update everyone on key milestones.

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