Latest: May 8, 2018
We Hit a Brick Wall!
On Friday, as the Bank Holiday loomed, we rushed to finalise and file a Minute of Intervention.
However, this morning, with a heavy heart we reached the decision that we had been left with no altern...Read more
Article 50 Challenge
The Scottish Question
What Is Happening?
A50 Challenge is conducting a legal challenge in the English High Court to the Government’s conduct of the Brexit process. An opportunity has now arisen to bring the same issues to the attention of the Scottish Courts.
We are seeking funding for #A50Scotland, a legal action which could utterly transform the politics of Brexit. Please contribute and share this page now!
The Court of Session is considering whether the Article 50 notice can be revoked under EU law. A50 Challenge is intervening in the Scottish Case so that the Court considers three essential preliminary questions:
Can Article 50 notice be revoked without an Act of Parliament?
Has a valid decision to leave the European Union been made by the UK?
Has Mrs May sent a legitimate Article 50 notice?
If the answer to the first of these questions is, as we believe, Yes, then as night follows day the answer to the second and third questions must be No.
Our Sovereign Parliament has not yet made a decision to leave the EU. The Article 50 notice and current Brexit negotiations are illegitimate. Not only should the Article 50 notice be withdrawn, but it must be withdrawn.
This is the fundraising page for #A50Scotland. You can contribute to #A50Challenge here.
A full description of the A50 Scotland Challenge follows, for those interested in the details of the case.
The Race for Justice
In the case of Andy Wightman MSP and Others against the Advocate General, the Court of Session has been asked whether Mrs May’s letter notifying the UK’s intention to withdraw from the EU may be lawfully revoked. The Petitioners in that case have already been granted permission to apply for Judicial Review, and the hearing is due to take place in Edinburgh on 12th June. Coincidentally, 12th June is the same day as the hearing in the High Court in London to determine whether A50 Challenge should be given permission to apply for Judicial Review. As a result, the Scottish case about revocation will be heard before the A50 Challenge asks the English Court to consider whether the notice has been validly served at all.
An intervention in the Scottish case has the potential to establish, not only whether the Article 50 notice may in theory be withdrawn, but more significantly whether the Article 50 notice has been validly served in the first place. If the Courts do determine that the A50 notification is invalid, then the Government will have to ask Parliament to pass legislation which amounts to a decision that the UK should leave the EU. As it should have done in the first place if Brexit is to be conducted lawfully.
Where is the Decision?
In granting permission to apply for Judicial Review the Court of Session said the following about the Article 50 process:
Although it has sometimes been reported that what Article 50 requires is two years notice of withdrawal, that is not what it says. The member state first has to decide to withdraw. Having made that decision, it notifies the Council of its “intention”. This triggers a state of affairs in which the EU requires to negotiate and conclude a withdrawal agreement with the state.
The Court also questioned what decision the Secretary of State for Exiting the European Union was referring to when he claimed, on the floor of the House of Commons, that the decision to leave the EU was irreversible. As we never tire of saying, “Where is the decision?”
The Court of Session seems to think it is an important question, though in its defence to the Article 50 Challenge the Government denies that any decision is necessary and refuses to identify one. The Court also took the view that, as the Scottish Challenge has the potential to influence future Government and Parliamentary action, there is a substantial argument that the Scottish case should not be dismissed on the grounds of delay.
Can the A50 Notice be Withdrawn?
Two fundamental questions lie at the heart of the A50 Challenge case:
Has the UK actually made a decision a leave the EU in accordance with its constitutional requirements?
If there is no such decision, is the Article 50 notice valid?
These questions have not formed part of the Petitioners’ case, to date at least, yet they are fundamental to the questions being considered by the Scottish Court.
Before considering whether the Article 50 notice may be revoked, the Court will need to consider whether it has been properly served. Has the decision and intention to leave the EU referred to in the letter been validly formed?
Secondly, before inviting the European Court of Justice to consider whether European law permits revocation of the notice, the Scottish Court should address the question of whether there is anything in the European Union (Notification of Withdrawal) Act 2017 itself or other UK legislation, which prohibits revocation. If there is not, this suggests that the 2017 Act does not include the change of law that the Supreme Court determined was necessary before the Government was entitled to serve the Article 50 notice. The notice is invalid.
The first stage is to apply for permission to intervene. The initial application is made in writing, though an oral hearing will take place if either of the parties requires it. The parties to the dispute, Mr Wightman and his fellow Petitioners, and the Advocate General, must be notified. We anticipate that the Advocate General will demand a hearing, in an effort to resist our application.
The Court is entitled to grant permission to intervene if:
the case and the issue that A50 Challenge wishes to address raise matters of public interest;
A50 Challenge’s intervention is relevant and likely to assist the Court; and
the intervention will not delay matters or unduly prejudice the parties’ rights.
We are confident that our proposed intervention comfortably meets all of these criteria.
If A50 Challenge is granted permission to intervene, the submission would normally be limited to 5,000 words. The Court may allow a longer written submission and/or allow A50 Challenge to participate in the hearing of the Scottish Case.
What We Need
As the proceedings are being conducted in Scotland, we will need to instruct a whole new set of lawyers. Although much of the work, preparation of the initial drafts of the application for permission, and subsequently the submission itself, can be prepared by our existing team based on work they have already conducted, Scottish Counsel will need to review the draft application and submission, and to appear in Court, should either the application or the intervention itself involve a hearing. We need to appoint Scottish solicitors to instruct Scottish Counsel, liaise with the other parties and the Courts.
We are setting the initial target to £20,000 and we will continue to stretch the target as necessary. We are awaiting estimates from Counsel and lawyers, but it is difficult to work out cost plans, before we know the trajectory of events. We will therefore need to be responsive.
Please support #A50Scotland in any way you can – donate, and spread the word using the hashtags #A50Scotland and #A50Challenge.
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May 8, 2018
We Hit a Brick Wall!
On Friday, as the Bank Holiday loomed, we rushed to finalise and file a Minute of Intervention.
However, this morning, with a heavy heart we reached the decision that we had been left with no alternative but to withdraw our application for intervention in this case.
Over the weekend our Counsel was advised by Counsel for the Petitioners (Aiden O’Neill QC) that he feared that if the Court allowed our intervention, the Petitioners’ attempt to get the question of the revocability of the Article 50 referred to the European Court of Justice (CJEU) would be frustrated. Inviting the Court to consider whether Article 50 had been legally invoked could lead to it deciding to refuse to make the reference to the CJEU that the Petitioners were seeking, or delay the reference whilst the UK constitutional law points were resolved. We were advised that if we proceeded with our application to intervene, it was likely that the Petitioners would drop their claim entirely: there would be no reference to the CJEU and our intervention in Scotland would be left stranded.
We are mindful of our responsibility to our funders and conscious that we are already addressing the issue of the validity of the Article 50 notice in the High Court in London. Neither do we wish to obstruct the efforts of others who are trying in different ways to prevent the harm being visited upon the country by the manner in which the Brexit process is being conducted.
Accordingly, we have instructed our legal team to withdraw our application for intervention for the time being. Should the Court reject the Petitioners’ arguments on 22 May, and the issue return back on an appeal in the Inner House, we will reconsider intervening at that point. In addition to the revocability question, there are a series of questions about the meaning and effect of Articles 50.1 and 50.2, distinct from questions of UK Constitutional law, that could, and perhaps should, be referred to the CJEU.
However, if the Petitioners are successful and the Outer House makes the requested reference to the CJEU, we will close crowdfunding for the Scottish Question. Under the rules of CrowdJustice, unused funds will be transferred to another case of our choice. In that eventuality we will move them to our main Article 50 Challenge case. Requests for refunds of donations over £1,000 can be made via CrowdJustice. We will publish information on the available balance as soon as they are available. For the moment we are not accepting any new pledges for the Scottish Question. If you wish to see the UK courts address the issue of whether or not the UK has made a valid decision to leave the EU please pledge at www.a50challenge.uk.
In the interests of clarity, here is a chronology of events as they unfolded:
On 17 April, Liz Webster spoke to the Petitioners’ solicitor, Elaine Motion of Balfour Manson Solicitors, to inform them of our intended intervention and the benefits as we saw them to determining the answers to the question of revocability of Article 50.
On 19 April we wrote to Elaine Motion setting out in clear terms the scope of our intervention.
On 20 April, Elaine Motion emailed a response saying simply:
“I have liaised with my team. Having considered unfortunately we do not see any overlap between the issues in your JR and ours and nor do we see that you have any real interest (given the Petitioners that we have). In these circumstances we will be opposing any intervention application.”
We commenced the crowdfunding campaign on 20 April.
On 2 May Jolyon Maugham QC tweeted that there had been no intervention from the “so-called Article 50 Challenge” and that the date of the hearing had been brought forward to 22 May.
We made an urgent appeal for funds and, amazingly, reached our target within hours, enabling work to begin on this intervention.
In order to maximise our chances of being allowed to intervene in spite of the hearing date having been brought forward, Counsel worked urgently to write and issue the Minute of Intervention which was submitted to the court on Friday 4 May.
Aidan O’Neill QC, counsel for the Petitioners, spoke to our Counsel (both Hugh Mercer QC and James Mure QC) on Friday to outline a number of concerns the Petitioners had in respect of our application for intervention.
On Monday 7 May we held a conference with our Counsel and solicitors, during which they unanimously advised that we should withdraw, in light of the concerns of the Petitioners. We felt that the right thing to do was therefore to withdraw our application.
On Tuesday 8 May the solicitors carried out our instructions to withdraw.
For completeness, we also requested that our solicitor write to the Petitioners’ solicitors to inform them that we felt this most unsatisfactory course of events could have been avoided if these concerns had been raised with us when we first spoke on 17 April, or in response to our letter of 19 April (both of which preceded the crowdfunding campaign in respect of the intervention).
Had we been informed at that point that they believed an intervention would have been likely to have the practical and procedural effects outlined by their counsel, Mr O’Neill, on Friday, we would of course have considered that information. In all likelihood, we would have reached the same conclusion we have now reached: that it is better to have the Court consider the narrower argument (however incomplete we believe that consideration might be in the absence of the prior questions on the validity of the purported decision) than to have no petition at all.
Better and earlier communication of the Petitioners’ concerns about the possible consequences of an intervention would have allowed for more joined-up decision-making, and avoided the waste of significant time and cost. It is therefore highly regrettable that that did not happen.
The Article 50 Challenge Team
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