Royal Prerogative cannot be used to remove ordinary people's rights granted by Act of Parliament, the Government must respect that.
What are they up to now...? Guess!
You cannot be serious, man!
You may not have been able to listen to the Commons debate on the EU (Withdrawal) Bill last Thursday and Monday.
The speeches are available online. Some of them esp. Kier Starmer, Ken Clarke and Hilary Benn are really worth hearing.
The Government is seeking powers (“Henry VIII powers”) well beyond those it really needs,...Read More >>
My name is Grahame Pigney. I am organising this crowd funding campaign because I believe important individual rights and benefits of ordinary British (UK) Citizens are at risk as a result of the UK leaving the EU.
The enforced removal of citizenship rights from 65 million people is completely unprecedented in a modern democracy.
The rights and benefits of ordinary UK Citizens were hardly mentioned during the referendum, lost in the general rhetoric about trade, influence and taking back control.
I believe that, as Parliament has granted us these rights, it is for Parliament to decide when, how and under what circumstances they are taken away.
The Government disagrees and is being challenged in the courts.
This campaign seeks funding to make sure ordinary UK Citizens are involved, represented and can have a say.
This is one of the most important constitutional cases of our time.
It will decide whether it is for an appointed executive (the Government) or our democratically elected Sovereign Parliament to decide when and how the UK leaves the EU.
The campaign builds on pioneering work by Jolyon Maugham QC via his Crowd Justice campaign on how to challenge the Government over who triggers Article 50 – the EU exit mechanism. Jolyon's work resulted in this letter being sent by Bindmans LLP questioning the use of the Royal Prerogative to trigger Article 50.
John Halford at Bindmans LLP is now advising me and Helen Mountfield QC is leading the team who will argue our case in court. The first £50,000 will cover the cost of further advice, research and preparation of our case in writing to put to the court, along with some limited protection against government costs. We will need to raise up to a further £100,000 in the run up to the October’s hearing so we can fully participate at that stage.
A number of other challenges to the Government triggering Article 50 have been made. At a hearing on 19th July the Court decided that the challenge brought by Ms Gina Miller, represented by Mischon de Reya, would be the lead case, but that a limited number of “concerned citizens” would be allowed to participate as interested parties. Arrangements are already being made to "fast track" the case to the Supreme Court.
I believe that the individual rights and benefits of ordinary British (UK) Citizens deserve special attention in addition to more general arguments about whether the Government can trigger the UK’s exit from the EU without an Act of Parliament.
We must make sure that the rights of ordinary UK Citizens are not, once again, ignored in the decisions about when, how and under what circumstances the UK leaves the EU.
This is the value, importance, impact that ordinary people's involvement in the challenge will add - making sure the court understands why it is unacceptable for our rights to be stripped away without an Act of Parliament.
This is why I and other UK citizens both in the UK and overseas are prepared to be named as interested parties in the challenge to the Government and not just rely on others to make the more general arguments. Our group includes my son Rob Pigney, 22, Paul Cartwright, 50, a Gibraltarian national who runs Brex-IN, Christopher Formaggia, 49, who lives in Wales, and Tahmid Chowdhury, 21, a London student.
For ordinary UK Citizens to have the chance to argue that their individual, personal rights and benefits justify that the timing and conditions of a Brexit should be decided by our democratically elected Parliament and not an appointed Government, crowdfunding is essential. We also need to set aside money to cover a contribution to the Government’s legal costs, in case one is ordered by the Court.
Take Back Control
Make sure our Parliament retains its Sovereignty and that the Government respects that Sovereignty. This was a very important part of the referendum campaign that everybody should be able to agree on.
My Commitment to You
I will keep you informed regularly of the progress of both the CrowdJustice fundraising and the case. I will also make sure there are updates from the legal team for those who want more detail, that our legal arguments are published and I will press the Government and the Court to make its arguments public too.
Why am I doing this?
Whatever the opinions about the result of the referendum on 23rd June, I believe the result has thrust a far more important issue to the fore – Parliamentary Sovereignty.
This challenge is not being brought to reject or ignore the 17.1 million votes cast on 23rd June to change the status-quo and leave the EU.
It is being brought to ensure that Parliamentary Sovereignty is maintained and is respected by the Government of the day, to ensure that the rights of all 65 million UK Citizens are protected.
But ordinary people cannot afford to take on the Government on this important issue without crowdfunding support.
What are our individual, personal rights?
These rights include important personal freedoms:
anywhere in the EU, provided you are not a burden on the country you live in.
We all have these freedoms.
What are our personal protections and benefits?
In addition there are benefits and protections that give practical effect to the freedoms we enjoy including:
health care arrangements;
non-discrimination at work & about property ownership where you live;
voting rights in local elections in your country of residence.
These rights and protections apply to all UK Citizens and millions of UK Citizens take advantage of these rights every year.
Parliament has granted us these rights.
This is not about whether there would be or could be equivalent rights following a Brexit.
It is about the fact that those rights exist now, granted by Parliament to UK Citizens and why it must be Parliament, the Sovereign body in the UK, that decides when, how and under what conditions the UK withdraws from the EU and thus removes those rights.
It is for Parliament to decide whether to take our rights away.
Since the passing of the European Communities Act in 1972 the UK Parliament has granted us rights and privileges relating to the membership of first the EEC and now the EU.
If we do not challenge the appointed UK Executive, the Government, about its intention to roll back Acts of Parliament without an express mandate from and direct supervision by Parliament we are allowing our Sovereign Parliament to be weakened and even usurped.
This Government wants to ignore Parliamentary process
Following the referendum this Government proposes ignoring the rest of the process that Parliament set in train when it passed the 2015 Referendum Act.
The current Government wants to use ancient (archaic) Royal Prerogative to trigger the process of the UK leaving the EU in the interest of the Government's sectional and party political interest.
By using the Royal Prerogative to trigger Article 50 of the Treaty of Lisbon this Government will be sweeping away rights at a stroke of a pen without the proper scrutiny of and a final decision being made by our Sovereign Parliament.
This is an act of constitutional vandalism.
The team who are arguing this case for us
Our barristers are all public and constitutional law specialists and, just as importantly, are fully committed to ensuring ordinary members of the public have a say in this challenge. They are Helen Mountfield QC, Gerry Facenna QC, Tim Johnston and Jack Williams.
They are willing to work for rates lower than those the Government pays its own lawyers, but a huge amount of work is needed.
About the claimant
I am Grahame Pigney, one of many UK Citizens greatly concerned about the consequences of the Referendum result and the effects of a "Brexit".
I happen to live in France but that is inconsequential in the context of the constitutional crisis we are facing because the UK Government has signaled its intent to ignore Parliamentary process and Sovereignty by triggering an exit from the EU without a mandate from Parliament and direct Parliamentary supervision.
Justice isn't free in the UK, for many people the cost is prohibitive. That is why ordinary people can rarely afford it, that is why we are asking you to support our crowdfunding campaign to bring this case.
What's at stake - nothing less than Parliamentary Sovereignty. We need to make sure we do not hand the Sovereignty of the UK to a self-appointed Government.
We have retained the leading firm Bindmans LLP who will instruct a specialist team to fight for our rights..
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What are they up to now...? Guess!
You cannot be serious, man!
You may not have been able to listen to the Commons debate on the EU (Withdrawal) Bill last Thursday and Monday.
The speeches are available online. Some of them esp. Kier Starmer, Ken Clarke and Hilary Benn are really worth hearing.
The Government is seeking powers (“Henry VIII powers”) well beyond those it really needs, as a number of Honourable Members explained.
If the Bill granting those powers is passed, the Government could make other moves far beyond those necessary to leave the EU.
The Government could even use these powers to change the terms of the Withdrawal Bill itself without referring to Parliament. And let’s not forget that today’s Government could be gone tomorrow, so personal assurances by current incumbents about "come and see me" are worth absolutely nothing.
David Davis wants these "Henry VIII" powers to act without going back to Parliament again. They are supposedly to allow him, as Secretary of State, not only to “fill in the gaps” that are a consequence of the complex process of leaving the EU but also to make changes “wherever necessary”.
And why are they seeking powers of this enormous scope? Because the Government does not have a clue about what those gaps may be and what will be necessary.
Or do they want these powers in order to turn the UK into a low taxation, low regulation "Singapore off the coast of the EU"?
Theresa May has been committed to “Brexit is Brexit” since June 2016. As of September 2017, it is “clear” (a favourite word of hers) that neither she nor her ministers know the extent of what needs to be done.
And so the Secretary of State wants to be granted the power to do “whatever is necessary” (i.e. whatever TM and her Government haven’t yet got a clue about) without parliamentary scrutiny.
“We don’t know what we’re doing, but let us do it unsupervised anyway”.
How is this the UK’s Sovereign Parliament “Taking Back Control”? The Government is seeking to reserve powers to a Cabinet Minister, not to Parliament!
We must not let Parliament be bypassed – whatever your political standpoint, giving a Government unfettered control is retrograde, undemocratic and very dangerous to boot!
Parliament has voted to approve the second reading, which means there will next be a committee stage before it comes back to Parliament.
This is the opportunity for the bill to be closely examined, for the Government to be closely questioned about why such wide-ranging powers should be necessary and how their use would be limited, aside from the “personal assurance” nonsense (see above) being bandied about in the House during the debate.
And just one more thing: accession to the EU, and treaties amending the EU (Maastricht, Lisbon etc.), were debated in the House for around 20 days. The government proposes that the incredibly important and complex issue of leaving the EU, which they themselves manifestly don’t understand, be allocated just 8 days for debate.
I suggest to you that the Government doesn’t learn from its past mistakes, a very worrying thing in itself. I believe it is in bulldozer mode again, seeking to push this measure through before MPs and their constituents (i.e. the British people) have had a proper opportunity to consider the ramifications and engage in the debate.
Please contact your MP and leave him/her in no doubt of your opinion about this attempted power grab, and the reasons behind it. Parliamentary democracy is hugely important and must not be given away, especially into such ignorant and irresponsible hands.
"Well, frankly the Government can say whatever it wants, it doesn't make it true."
"Well, frankly the Government can say whatever it wants, it doesn't make it true."
Here Tahmid Chowdhury of The People's Challenge talks to RT about the Repeal Bill, Henry VIII powers and Fundamental Rights.
The Government has produced a Bill that Dominic Grieve described as "a monstrosity of a Bill", Sir Ken Clarke was equally unimpressed with the bill saying that assurances would just not cut it anymore!
Labour was just as scathing, Sir Keir Starmer spent a considerable amount of time lampooning David Davis, tearing great big holes in the Bill and reminding him that he had triggered a by-election over less controversial material.
The Perfect Storm
We’ve probably all heard of The Perfect Storm. Apart from anything else, it’s a good film based on true events.
It seems the current political situation in the UK might be considered to be a perfect storm. Hmm.
A perfect storm is a naturally-occurring rare combination of circumstances which will aggravate a situation drastically. Classically, there are three elements:
- hotter air – there’s certainly plenty of that;
- cooler air – plenty of that too, although most seems to be abroad;
- humidity – there's hardly a dry seat in the house;
Can the UK’s current political situation be considered natural? I don’t think so. It’s the product of cynical manipulation by various self-seeking factions, all of which rate their own ends far more highly than the best interest of the UK.
But there are certainly three very important elements in it which have now come together, whether by accident or by design:
- The government’s attempted grab of “Henry VIII powers”;
- The flagrant disregard of human rights issues inherent in the Brexit situation.
The government is apparently determined to deliver Brexit on “her” own terms, because “the people have spoken”.
The type of Brexit was not part of the question that people were asked in the referendum, so the referendum result can’t be claimed to be a mandate to exit the EU with or without a deal of whatever kind.
The ramifications of leaving the EU are still far from clear, either to us or to the politicians, who are the only ones naïve enough to have allowed themselves to be left with this poisoned chalice.
The government tried to bulldoze its way through to triggering Article 50, but the UK people and the UK courts reined it in. It is now attempting to grab “Henry VIII powers” which would allow it to act without further reference to Parliament. Again, it must be reined in, and the people of the UK must show Parliament that it has their support to act in the best interest of the country.
This particularly involves MPs abiding by the oath they swore before taking their seats, and not being browbeaten by their party establishment into acting against the interests of their country, their constituents and/or their personal beliefs.
In the EU, many citizens have chosen to move to another EU country, whether temporarily or permanently, to live and work. Some have, perhaps for career reasons, moved round a lot.
All have relied on their status as not only a national of their own country, but also as an EU citizen, to do this with minimal difficulty. This has been the norm for over 40 years. Their rights to have their situation protected (as a “result” of a referendum in which many of them were refused the right to vote) are being given very little attention.
UK citizens resident in the UK with little desire to go elsewhere except on holiday are also affected…
The UK is heavily reliant on EU citizens to work in UK healthcare, and to harvest, process and serve food in the UK. As I have said elsewhere, UK citizens need other EU citizens to feed them, and to care for them when they’re being born, ill or dying, and it doesn’t get more fundamental than that. Freedom of movement is just the tip of the iceberg…
So, is this the perfect storm?
More like the perfectly dreadful storm! Setting the UK back half a century in its pursuit of a more modern and civilised way to co-exist and work together.
In fact, it’s probably a self-inflicted nuclear winter, where social, political and economic “progress” have all gone into reverse.
A perfect storm is a naturally occurring phenomenon. We can do little or nothing about it.
The current situation in the UK is far from that.
We can influence what happens, we can stop bigotry and idiocy driving us towards a very bad outcome for the UK, especially if this crazy “no deal is better than a bad deal” idea persists.
Nothing, nothing about the current situation is absolutely inevitable. We can change things for the better if we work together.
Current weather news shows us how bad storm damage can be. We also see that storms don’t always come one at a time, one hurricane may hide another… or several.
Once more unto the breach dear friends...
The People’s Challenge is a unique organisation. Formed to ensure ordinary people’s fundamental rights were considered by the courts during the Miller Article 50 litigation, we are now fundraising to continue our active campaign to protect fundamental rights and promote parliamentary accountability during the critical months ahead.
We have already played a decisive role in legal battles and Parliamentary debates. We were active parties in the Miller case, thanks to one of the most successful crowdfunding campaigns ever for a legal claim. We began by forcing the Government to publish its ‘secret defence’, and made key submissions to the courts with detailed information about what was at stake including our analysis of fundamental citizenship rights.
When the case was won, we ensured parliamentarians were briefed throughout the passage of the EU (Notification of Withdrawal) Bill, using documents like Parliamentary sovereignty worth fighting for and Seven Reasons to Stand up for Parliament’s Sovereignty. We also suggested amendments.
We then published our‘Gold Card’ guide to the UK citizens’ fundamental rights at risk.
Next, we commissioned the Three Knights Opinion, in which some of the UK’s finest legal minds confirmed that the Article 50 notice is revocable and that further Parliamentary involvement is mandatory before there can be a lawful withdrawal from the EU.
Most recently, we published a detailed but accessible guide to this and other ‘legal milestones’ on the road to Brexit.
We are a small but very active group, supported by Bindmans LLP and Monckton, Matrix and Brick Court lawyers, who work for us at rates far lower than the Government’s advisors charge them.
Nevertheless, our crowd-funded war chest to pay for our lawyers’ work is now empty, and we as individuals can’t continue to fund our time and work entirely ourselves.
As before, legal and non-legal work will be needed on the road ahead.
CrowdJustice can only be used to fund legal work, i.e. the active involvement of legal professionals. Thanks to our terrific supporters, our CrowdJustice campaign was one of the most successful ever for a legal claim, so of course we’ll be continuing with them for the legal funding. Rest assured you’ll be hearing from us again when that happens!
But we need to ensure that The People’s Challenge remains an effective champion of its supporters and ordinary people in general – people just like you and us.
The individuals of The People's Challenge have funded the organisation and administration of the campaign since July 2016. We need to continue to work and direct the preparations needed for legal and parliamentary initiatives in the near future, and we need support in order to do it.
Without organisers there can be no effective campaign, without a client there can be no legal/judicial challenge. We need a second stream of funding for the non-legal work.
We have therefore set up The People's Challenge Ltd as a not-for-profit organisation, which will provide equivalent standards of regulatory compliance and governance. Transparency about the money we raise and how it’s used is very important to us, as you probably know.
We are now launching a GoFundMe appeal for this second stream of funding so that we can continue the work over the coming months, we hope you'll support us!
Now more than ever, an independent, non party-political voice must be heard on behalf of ordinary people. Now more than ever, we must ensure that where appropriate, legal challenges are brought and the executive is not allowed to ride roughshod over the public and Parliament. Marches show that people care, but can’t be relied upon to keep the executive within the law.
We will use the money raised to:
- hold a series of meetings with legal professionals and others to identify how we can most effectively act in the future as the UK/EU negotiations proceed and the EU Withdrawal Bill (aka the Repeal Bill) passes through parliament;
- extend the work we do with other organisations;
- with the help of our legal team, produce further briefings for the public, parliamentarians and campaign organisations on the threats to fundamental citizenship rights and/or parliamentary sovereignty;
- make modest recompense for the time and effort expended by individuals on The People’s Challenge Ltd and cover the cost of the website, phone calls, mailings, travel, meetings...
We need your support for these essential activities - activities that any effective campaigning organisation must undertake. Without your continued backing, we can’t continue helping to give ordinary people a voice.
We aim to help people and parliamentarians see what's going on, better understand what they are, or aren't, being told, evaluate it, and decide what would constitute the best outcome for the UK.
We are working for the outcome that's best for the future of the UK: an outcome in the national interest, which protects everyone's fundamental citizenship rights; an outcome that ensures that Parliament and not the executive is sovereign.
That’s the only stance we take.
If you care about the fundamental rights that Brexit puts in jeopardy, and the need for Parliament to safeguard them effectively, please send us a donation so we can maintain our campaign and continue to stand up for you.
Published by Grahame Pigney on behalf of The People’s Challenge Ltd
So what have we learnt about the UK from the talks in Brussels and the Queen's Speech?
So what have we learnt about the UK from the talks in Brussels and the Queen’s Speech?
To be frank, very little, and there is a very good reason for that – the cynical and self-serving election that Theresa May called backfired.
It didn’t deliver Theresa May a landslide victory; it was more like a sandcastle being undermined by the incoming tide.
Theresa May wanted to wipe out any parliamentary opposition, whether from within her own party or anywhere else.
She wanted to grab an open-ended mandate so that she could go off to Brussels (didn’t Theresa May say she was going to lead the negotiations?) and say to the EU “My country has given Me a mandate to do what I like”. Instead David Davis was packed off to Brussels to exchange gifts, shake hands and have lunch.
Why did this happen?
A monumental misjudgement on the part of Theresa May is the fundamental point. A misjudgement not just on one issue but on several issues:
- Strength of feeling among younger voters, the minorities, those who felt they were being ignored;
- Running a campaign based on personality when she did not have the personality to pull it off;
- Assuming that the referendum vote and this general election was all about the EU and nothing about the dysfunctional state of the UK;
- She took for granted her strongest supporters and loaded up her manifesto with measures that would hit them and their children;
- Last but not least, Theresa May misjudged her opponents.
The election was supposed to be all about Brexit and in fact there was very little debate about Brexit, except during Theresa May’s “Strong and Stable” phase.
We have a hung parliament with both major parties maintaining the meaningless position that the UK is going to leave the EU.
I say meaningless because we still don’t know what we are leaving the EU for. The major parties have conflicted and conflicting positions – “Jobs and Prosperity First”, “Leave the Single Market, Customs Union”, “Remain in the Single Market, Customs Union”. The permutations are endless and are spoken with equal conviction, i.e. none, by politicians no matter whether they wear a Red or a Blue rosette.
So almost exactly one year on from the referendum we still don’t know what the major parties intend for the UK post Brexit and substantive negotiations have still not started between the UK and the EU.
As if this wasn’t bad enough, we have a Prime Minister whose judgement is suspect to say the least and it seems that her negotiating skills are not up to much either.
Perhaps we will get some clarification during the debate on the Queen’s Speech.
It is more likely that we will see the two main parties competing to see which can give the most obscure redefinition of “Brexit means Brexit”.
So much for the "row of the summer".
As widely predicted yesterday's meeting between the EU Chief Art. 50 negotiator Michel Barnier and the UK's David Davis was largely symbolic.
They had lunch and agreed the negotiating programme that covers the next 4 months that the EU had set out.
David Davis's much vaunted "row of the summer" over whether exit talks and trade talks were going to be held in parallel or sequentially didn't materialise, they will happen sequentially as the EU proposed.
We now have to wait until the 17th July for the first substantive round of UK/EU negotiations.
In the meanwhile The People's Challenge will finish its own roadmap of what is likely between now and 00:00 30th March 2019.
We have been working on identifying the legal, judicial, and political events and questions which will shape the coming months as the UK and the EU seek to unravel 44 years of mutual agreements.
Once we know what is in the Queen's Speech and, what parliament approves, we will publish this roadmap.
And so the dance begins
So, against a background of increasingly confused and confusing stories coming from Westminster, these Brexit “negotiations” are about to “start”.
I use quotes because the agenda for Monday is very reminiscent of something which might be referred to as “flannel”. Lots of talking under vague terms like “working groups” and “Meeting of coordinators”. I get that the dog has to see the rabbit, but still there doesn’t appear to be a single session focused on any particular issue.
This is disappointing, but of course not surprising. Unlike the EU (see here and here for the EU’s position papers) the Govt has not presented its position or policy to Parliament (or anyone else for that matter). It would appear the Govt doesn’t know which way is up following Theresa May’s monumental cock-up in the election.
Currently the only person in the UK who (possibly) knows what will be going on in Brussels is the PM. Parliament has not been presented with the Govt plans for the negotiations, so it’s no longer “no running commentary”, it’s “we’re gonna go and do whatever”.
Again, “no running commentary” is not surprising. It is in the best interest of the PM that the humiliation the Govt is likely to suffer at the negotiating table remains a private one.
If only it wasn’t just Michel Barnier who had committed to open and transparent negotiations…
MPs say “Drop hard Brexit plans” – this is when the Three Knights Opinion really counts
It’s been 5 months since the Supreme Court ruled in favour of the People’s Challenge – confirming that Brexit was a Parliamentary and not a Royal Prerogative decision. It’s worth noting that this decision was made by a UK court, composed of UK judges, according to UK law.
Following that, the People’s Challenge commissioned the “Three Knights Opinion“. This provided convincing and authoritative evidence that the UK’s Parliament has the opportunity, and indeed the obligation, once the outcome of the Article 50 negotiations is known, to make the decision about which of all the possible options is in the best interest of the UK and its people.
The necessity for this decision, one that obviously has to be made independent of party political interests, has been thrown into sharp relief by the outcome of this general election (June 2017) called by an autocratic and out-of-touch Prime Minister.
Former Tory cabinet minister Stephen Dorrell, said in today’s Guardian:
“At the beginning of the general election campaign, Theresa May said she was seeking a mandate to negotiate her sort of Brexit; the result denies her that mandate.”
He added: “The prime minister’s version of Brexit was set out in the Conservative election manifesto; it said that sovereignty was a red line, and concluded that Britain must withdraw from both the single market and the customs union. In doing so, it threatened our economic interests, and funding for our public services.”
“At a time when many families have seen no improvement in their living standards for more than a decade, and public services are grappling with rising demand and squeezed budgets, voters concluded that these priorities were simply perverse and refused to endorse them.”
“That will require parliamentarians to maintain an open mind; they will need to question the negotiating mandate developed by ministers and they will need to make it clear to ministers that they cannot take support for granted at the end of the negotiating process.“
“Most importantly, despite anything the prime minister may say, it is essential that parliament maintains for itself the option of voting for Britain to remain a member of the EU if it becomes clear that this is the best way to secure Britain’s national interest.”
Postscript: what the People’s Challenge did next
We thought now would be a good time to let our original supporters know what we have been up to since the Supreme Court unequivocally upheld parliament’s sovereignty indecision-making on the UK’s withdrawal from the EU in its Miller judgment.
Incredibly, that was only a month ago. But a month is a very long time in politics. Hopes of parliamentary resistance to withdrawal have since been repeatedly dashed, first by Labour MPs being whipped to support the EU(Notification of Withdrawal) Bill, then then by its passage through the Commons unamended and, more recently, with Labour’s shadow leader in the Lords, Angela Smith, disavowing any intention to‘pin pong’ the Bill between the two Houses. Teresa May was present as the Lords’ first debate opened, as if to watch her plans unfolding without hindrance.
But things are not quite so clear cut.
First, using funds raised so far in the Second People’s Challenge campaign, our team had discussions with, and briefed, MPs from all major parties who were interested in pressing for parliamentary control to be embedded in the Bill.
We also prepared a plain English guide to the EU citizenship rights at stake in the negotiations - rights that cannot be preserved by the Great Repeal Bill – and sent this to all MPs.
Our legal team also drafted an amendment which was tabled, albeit in a revised form, as NC99. A similar amendment, NC110, went to a vote and attracted significant support including from Tory rebels.
Though neither amendment was passed, the political support for them in the Commons will matter in the House of Lords which began its debates on the Bill on Monday and Tuesday this week. The Committee stage starts on Monday 27 February and will be completed on 1 March. The Reports stage and Third Reading will be on 7 March. If amendments are passed by the Lords, the Bill will be returned to the Commons so it can debate whether to accept them or not.
Although it is now clear the Bill will be passed, peers have proposed multiple amendments to protect the 2.9 million EU nationals currently resident in the UK regardless of the outcome of the withdrawal negotiations. Such protection would be both compassionate and pragmatic. Case-by-case decisions on the fate of millions are impractical. Acknowledging that resident EU nationals should remain here would encourage other EU states to reciprocate with their UK national residents. Without Miller,none of this would be up for debate.
Then there is the question of Parliament’s future role.
Ministers promised the Commons that they would “put the final deal that is agreed between the UK and the EU to a vote in both Houses” covering “not only the withdrawal arrangements but also the future relationship with the European Union”. Ministers “expect” this will happen “before the European Parliament debates and votes on the final agreement”.
But such promises can be broken and expectations go unfulfilled. And the constitutional problems are greater still. A vote against a resolution has no legal force.Nothing has been said about the consequences if Parliament rejects the terms of a negotiated ‘deal’, nor about its role if nothing is agreed. Many believe the risks of that are far greater than the White Paper suggests and it sets out no contingency plans.
Peers propose to tackle these problems indifferent ways with further amendments. Some would make ratification of any deal dependent on Parliamentary approval, or even a referendum. The most robust amendment proposed would require a future Act approving withdrawal with or without an agreement with the EU.
Our legal team wrote to all active peers last week explaining why such amendments are important. They are now working on a briefing for the Committee Stage debates.
But even if no amendments are made,Parliament can have a greater future role than Mrs May might like –if it chooses to embrace it.
That is the conclusion of a new legal opinion which we commissioned, published and sent and to every peer last week.
We approached our existing QCs – Helen Mountfield and Gerry Facenna - and three of the UK’s most respected EU lawyers – Sir David Edward, a former EU Court of Justice judge,Sir Francis Jacobs, that court’s former Advocate General, and Sir Jeremy Lever, an EU law pioneer regularly instructed by the Government when at the Bar. They were then asked to advise on what Article 50 means by “withdraw from the Union in accordance with its own constitutional requirements” and whether notification of intention to withdraw is reversible.
Their ‘Three Knights Opinion’ gives some hopeful answers.
First, notifying intention to withdraw is one thing, but Parliament must authorise actual withdrawal at a later date because, say the Opinion’s authors, “only Parliament that can give legal effect to the removal or conferral of individual rights that necessarily follow from that decision”. Authorisation must await any proposed deal because “meaningful Parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms”. And there must be another Act as “resolutions… cannot change domestic law, nor amend or abrogate existing rights”.
Suppose Parliament rejects the negotiated deal or there is none. At that point there will be “very strong arguments” that the Article 50 notification could be withdrawn. The UK’s constitutional requirements enshrine parliamentary sovereignty and “it would be incompatible with the European Union Treaties fora Member State to be forced out of the Union against its will, or contrary to its own constitutional requirements”.
The Opinion has had attention in the press,legal blogs and, most importantly in the Lords where it was mentioned by several peers. It is intended to be authoritative, but ultimately any dispute would need to be referred to the Court of Justice for a ruling. Whether that will be needed remains to be seen. So far Parliamentarians have supported the Government’s withdrawal plans.If minds change when the deal becomes clearer, the Opinion could well guide them towards making their sovereignty count when it will matter most.
In the meantime, we strongly believe the Bill can be improved. The parliamentary sovereignty we and others fought so hard for in Miller,thanks to your support, can be embedded in the Bill, putting beyond argument Parliament’s final say on the acceptability of any proposed deal, or of withdrawing from the EU without one.
The Second People’s Challenge campaign is all about making this a key issue in the ongoing debates and supporting parliamentarians who want to amend the Bill accordingly. If you have not yet supported it,please think about doing so now, at this critical time.
Final update – Q and A on costs
This will be the final update on our work to protect parliamentary sovereignty and ensure ordinary UK citizens’ rights were an important consideration in the Miller and Dos Santos case which succeeded in both the Divisional Court and Supreme Court.
Our Second People’s Challenge campaign remains open to help Parliament take control on Article 50. We will shortly be setting out our plans to support members of the House of Lords in amending the European Union (Notification of Withdrawal) Bill, so please consider supporting this important next step.
On 1 February 2017, the Government’s lawyers agreed what should happen about the Supreme Court stage costs, enabling our solicitors Bindmans LLP to give a final account to our supports as set out below.
How much money was raised via CrowdJustice?
The first People’s Challenge was funded with two Crowd Justice campaigns. £150,490 was pledged by 4326 people on the first and £170,550 was pledged by 4918 people on the second. Overall it was one of the most successful crowdfunded legal actions in the UK to date.
Didn’t the Government have to pay the costs of the People’s Challenge?
Yes, but only up to a relative small capped amount.
The People’s Challenge Group was an ‘interested party’ in the Miller and Dos Santos case. In judicial review cases like this one,interested parties generally meet their own legal costs and are not ordered to pay their opponents’ costs, but this can be varied if interested parties put arguments to the court that are different from those of the main parties (which we did in this case).
To avoid us having to raise enough money to cover an unknown and difficult-to-estimate amount of Government costs as well as our own, our solicitor negotiated two ‘reciprocal costs caps’ with the Government, i.e.maximum amounts each side could recover from the other, were agreed in relation to the Divisional and Supreme Court stage costs. They were £7,500 in the Divisional Court and £5,000 in the Supreme Court.
Under the agreement reached on 1 February 2017, the Government will pay the full amount up to both caps, so £12,500 inclusive of VAT.
Was the full amount raised via CrowdJustice paid over to the People’s Challenge solicitors?
No, because CrowdJustice deducts fees for its own support of all cases and there are credit card handling fees too. These are approximately 8% of the total raised. See here for details.
Did the People’s Challenge raise more than it needed once those deductions were made?
No. The case turned out to cost more than our legal team originally thought it would for a number of reasons.
In particular, in the Divisional Court:
we decided we would challenge the Government’s decision not to make its detailed defence public before the hearing and had to make an application to court to do so– this was successful and that meant everyone could see what the Government was arguing and consider its implications;
besides the claimants - Gina Miller and Deir Dos Santos - several groups of interested parties and interveners were involved at the Divisional Court stage and the Court directed that they should avoid presenting overlapping arguments at the hearing, which meant our legal team had to fully consider what they were saying and the legal materials they were relying on, then co-ordinate our lead barrister’s submissions with the other parties’ legal teams ;
our legal team also needed to keep abreast of, and deal with issues arising from the Belfast High Court proceedings, Agnew and others and McCord, including applying to that court to access some of the written submissions;
the length of the Divisional Courthearing was extended by a day and some court days were lengthened;and
extra written submissions were made by the Government, including after the hearing, which our legal team needed to consider and address.
Then, in the Supreme Court:
there was a dispute over whether we would remain interested parties and so entitled to participate –this was resolved in our favour;
the Government shifted the focus of its case onto a new argument based on the idea of ‘conduit statutes’ and that needed to be confronted;
we decided to expand the legal team to include an international law expert - Professor Robert McCorquodale - and another barrister – David Gregory –to help with the response and create our Annex on irreplaceable fundamental rights;
several new applications to intervene were made and our legal team had to consider and respond to them – ultimately four were permitted by the Court each of which had to be considered fully;
discussions and negotiations then took place between all the legal teams and the Court as to the amount of time each lead barrister should have, how overlaps could be avoided, and the order of the hearing;
the rulings in Agnew and others and McCord were appealed and questions about them were referred to the Supreme Court to deal with at the same time as Miller and Dos Santos – which meant more submissions and material to consider;
the length of the hearing was extended from the estimated two days to four;
a huge volume of material waspresented to the Supreme Court and much of it needed to beconsidered by our legal team – 13805 pages worth in Miller andDos Santos, 16890 in Agnew and others and McCord, thoughthere was overlap ; and
extra written submissions were made by the interveners during and following the hearing which our legal team needed to consider.
How much did the case cost, then?
To maximise the value of every CrowdJustice donation whilst ensuring there could be a an exceptional legal team of real experts, our barristers and solicitors agreed to work for rates less than those used by the Government (the latter have been unchanged for over ten years).
However, there was a huge amount of work undertaken.
In the Divisional Court, the team consisted of barristers Helen Mountfield QC and GerryFacenna QC, Tim Johnston and Jack Williams, along with John Halford of Bindmans LLP assisted by two trainees and a paralegal as needed, Darragh Mackin of Kevin R Winters who helped with Belfast issues.
The costs up to and including the Divisional Court judgment hearing were:
barristers’ fees of £91,674.29 inclusive of VAT;
solicitors’ fees of £96,032.88 inclusive of VAT; and
other costs to progress the case –court fees, copying in specialist libraries, travel and accommodation to enable claimants to attend hearings - £7,298.84 inclusive of VAT.
In the Supreme Court as mentioned above, the team was expanded to include international law expert Professor Robert McCorquodale and another barrister, David Gregory.
The costs after the Divisional Court judgment hearing on 3 November 2016, up to and including the Supreme Court hearing from 5 to 8 December 2016, were:
barristers’ fees of £107,485.08 inclusive of VAT;
solicitors’ fees of£67.954.25 inclusive of VAT; and
other costs to progress the case –court fees, copying in specialist libraries, travel and accommodation to enable claimants to attend hearings - £6,776.88 inclusive of VAT.
It follows that total costs of the Divisional Court and Supreme Court were £377,222.22 inclusive of VAT.
The total costs are more than the total of what was raised via CrowdJustice plus what the Government will pay, so what will happen about the shortfall?
Our barristers and Bindmans have reduced their fees to eliminate the shortfall.
Thank you for every penny donated. Whatever happens now in Parliament, this case made history by protecting Parliament’s authority against this and any future governments’ abuse of power.
There could be no People’s Challenge without you.
We hope to see further support for the Second People’s Challenge. Now that Parliament’s sovereignty has been reaffirmed, it’s time for it to be enforced as it was over 300 years ago.
Update – Progressing our work supporting parliamentary sovereignty and a thank you for your support
Over the weekend we reached our initial fundraising target for work to make the parliamentary sovereignty and accountability won back in the Miller case as meaningful as possible. This will enable us to complete work on the guide to the citizenship rights that are at stake at this critical time, publish and disseminate it, to seek legal advice on the safeguards Parliament can impose and support MPs who are interested in taking this forward.
We have been liaising with MPs, reviewing the amendments others have tabled and the legal team has been drafting an updated version of what we propose which will be available very soon in a further CrowdJustice update.
Thank you very much for helping us reach our first target and making this important work possible.
You can find the Second People's Challenge here
Chris, Fergal, Grahame, Paul, Rob and Tahmid
Taking action on the People’s Challenge amendment
The European Union (Notification of Withdrawal) Bill was published yesterday by the Government.
It has a simple, brutal purpose: to hand back to the Prime Minister all of the power she wrongly claimed she had during the Miller case, so she can proceed as before.
Although she promised Parliament a vote on the final negotiated withdrawal “deal” with the EU at last week’s Lancaster House speech, that means almost nothing, because a vote on a motion has no legal effect (as the Supreme Court noted in Miller) and because the notification she intends to give will be unqualified. If Parliament has concerns when it is told about the terms of any deal, it will find it hard to do much about them at that late stage if it is limited to a vote on a motion. And no deal is guaranteed.
The Bill does not need to be this way. An amendment has been urgently drafted by the People’s Challenge legal team (Helen Mountfield QC, Gerry Facenna QC, David Gregory, Jack Williams and John Halford) and is set out here along with its Explanatory Note.
This is not a wrecking amendment, nor one that ‘blocks Brexit’. It’s purpose is to enable Parliament to fulfil its constitutional role throughout the Article 50 withdrawal process; the role the Supreme Court confirmed in the Miller case in which the People’s Challenge group, was an interested party.
If it is supported by MPs amendment or peers and passed, the amendment ensure that Parliament authorises the Prime Minister to notify the United Kingdom’s intention to withdraw from the EU under Article 50(2) in a manner which:
- guarantees that it will be Parliament that must decide to approve the terms of any withdrawal agreement negotiated between the UK and the EU, in full knowledge by that time of what the effects of that agreement will be on the rights of UK nationals and businesses, and EU nationals in the UK; and
- makes provision for the possibility that no withdrawal agreement is concluded within two years of the date of notification (or such time as is extended by agreement with the European Council).
For these vital safeguards to be taken up, MPs and peers have to back the amendment.
We are encouraging People’s Challenge supporters to take action now to make that happen. We suggest that writing to MPs about it, or better still go and see them, and tell them:
- their reasons for supporting the People’s Challenge;
- why Parliament needs to stay in control, especially given the rights at stake; and
- why MPs should consider backing the People’s Challenge amendment.
You can find MP’s details here.
Please also consider supporting the Second People’s Challenge with a further, small donation, so we and the legal team can continue with our action plan at this critical time.
Thank you for your support.
There are White Papers and White Papers, but now at least we have a White Paper...
The Prime Minister, by announcing that there will be a White Paper on the article 50, seems to have vindicated the decision to set up the Second People's Challenge.
Whether that White Paper turns out to be sufficient for the purpose is up to our MPs.
The change in the PMs stance on the vote in Parliament has not been brought about by the Supreme Court's decision alone or by the shift in public opinion or even the hostility in Parliament but by the combination of the above that has turned the call for meaningful Parliamentary control into an irresistible force.
As Harriet Beecher Stowe said "Never give up, for that is just the place and time that the tide will turn."
In order to achieve this we need more shares, more tweets, re-tweets and more people backing our campaign. More importantly we need you to not give up, give in or settle for less than we are entitled to!
Victory in the Supreme Court – and what’s next for the Parliament and the People’s Challenge
As has already been widely reported, today an 8-3 majority of the Supreme Court upheld the Divisional Court decision, ruling. They stated:
“We cannot accept that a major change to UK constitutional arrangements can be achieved by a ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.”
Legal history has undoubtedly been made. Ordinary people’s voices have been heard on fundamental rights issues, thanks to the People’s Challenge. The majority of the Court said they had grappled with “some of the most important issues of law which judges have to decide”.
affirms that “because the EU Treaties apply as part of UK law, our domestic law will change as a result of the United Kingdom ceasing to be party to them, and rights enjoyed by UK residents granted through EU law will be affected”;
puts it beyond doubt that “some rights… will be lost on the United Kingdom withdrawing from the EU Treaties” and that these are, thanks to Acts of Parliament,fundamental domestic rights enjoyed by all UK nationals;
explains “complete withdrawal” will therefore “constitute as significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act”;
notes that the historical cases show it “is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law”;
firmly states “[i]t would beinconsistent with long-standing and fundamental principle for such afar-reaching change to the UK constitutional arrangements to bebrought about by ministerial decision or ministerial action alone.All the more so when the source in question was brought intoexistence by Parliament”; and
concludes tantalisingly, in its main section, with the indication that “what form such[authorising] legislation should take is entirely a matter for Parliament… the fact that Parliament may decide to content itself with a very brief statute is nothing to the point.”
Of course, Parliament now may also decide on legislation that is not the ‘one line Bill’its lead barrister James Eadie QC promised would be the outcome were the appeal to fail.
It will not need to seek the devolved administrations’ approval of the proposed legislation, however, because, said the Court:
“Within the United Kingdom, relations with the European Union, like other matters of foreign affairs, are reserved or excepted in the cases of Scotland and Northern Ireland, and are not devolved in the case of Wales”
and the Sewell Convention operated only as a political constraint. The Northern Ireland Act’s self determination provisions did not impact on the Brexit process directly.
In form, then, the judgment is a careful analysis of argument and precedent. But in substance it is no less than a restoration of Parliament to its rightful place as the ultimate decision-maker in our democracy.
What now? The Government will imminently publish an authorisation Bill. MPs will need to decide whether they are prepared to pass it unamended, or to be as courageous as our judges have been and take all necessary steps to ensure they remain in control of the Article 50 process including,critically, the final decision on whether the terms of withdrawal are acceptable.
We are determined to help them, hence the Second People’s Challenge.
There will be one final Update to this first campaign with a breakdown of the work we have done so far. Thank you again for everything you have done to make the People’s Challenge not only possible, but effective.
Article 50 ruling to be handed down on 24 January
The UK’s Supreme Court is to give its judgment in the ‘Brexit’ legal challenge at 9.30 AM on Tuesday 24 January.
The 11-Justice Court will decide whether to reject or allow the Government’s appeal against the ruling that it cannot use the Royal Prerogative to take the UK out of the EU by triggering Article 50 without Parliamentary approval in the form of an authorising Act. The Court is also likely to rule on arguments that the devolution arrangements with Scotland, Northern Ireland and Wales may impose additional safeguards, including the need for legislative consent motions.
The Divisional Court ruling that Parliamentary authorisation is required was won in the High Court by campaigners led by Gina Miller, Deir Dos Santos, the People’s Challenge and others. Bindmans’ Partner, John Halford, represents the People’s Challenge group which is supported by over 5000 CrowdJustice contributors.
He said today:
“Parliamentarians need to clear their diaries and make themselves ready. If the appeal is dismissed, as we hope, they will be able to insist on proper proposals, debate, accountability and meaningful control of every step the Government takes from now on in relation to its Brexit plans. British people should expect no less of their representatives.”
Any day now
Rumour and speculation abound regarding the Supreme Court judgement later this month.
Apparently the Govt. has asked for and been refused advanced sight of the decision The reason, apparently, was so that it could put contingencies in place.
This does beg the question: why are there no contingencies in place already? Is the Govt. not ready for the Supreme Court decision? There are, after all, only two possibilities.
The court has announced that no one will get a sneak peak at its decision; so, quite rightly, there will be equal treatment for all from UK Justice.
The court has also said that the decision is anticipated before the end of January and 3 working days notice of the decision will be given.
Typically the President of the Supreme Court will then give a summary of the Court’s unanimous view or, if there is a majority decision, what that is and any dissents. We will issue a further update just as soon as we hear more from the Court.
Theresa May's next big step seems to be her speech on Tuesday. It will be interesting to see whether in doing so she gives our Sovereign Parliament the respect to which it is entitled.
Christmas Greetings and update
As 2016 draws to a close and we await the Supreme Court's confirmation that the UK's Parliament is the Sovereign authority that Theresa May and her Government must respect and obey, our thoughts turn to the process by which our MPs will determine what is in the best interests of the UK and its citizens.
An overarching theme of the People's Challenge has been that fundamental rights & benefits of ordinary citizens have been almost totally ignored during the debate on the UK's membership of the EU and the (in)actions of the current self-appointed and autocratic government.
Even when those rights have been referred to, it has often been done using the phrase "freedom of movement" with little knowledge, much less explanation, of what that represents, in simple practical terms, to ordinary UK citizens.
The People's Challenge has grounded its case in the fundamental principles of citizenship rights, not just the grand principles but also the more down to earth, everyday implication and implementation of those grand principles.
These rights have been in place for long enough that many people have enjoyed them their whole lives, and many others have forgotten how things were before we had them.
We are now planning out the next stage in our challenge to the UK Government and the Brexiteers and the protection of the fundamental rights and benefits we all have as citizens of the EU.
This will show that EU citizens have rights that extend far beyond the simple phrases "freedom of movement" and "right to remain". Furthermore, it will demonstrate that for many people these rights, once lost because of withdrawal from the EU, could not be restored or replicated by actions of the UK Government.
The work will involve, amongst other things, further legal work to produce a detailed document that can be turned into a definitive "plain English" guide to the fundamental rights enjoyed by all EU citizens.
We will also be assessing the extent to which these rights are protected as acquired rights under EU and International law so that we know what we can expect if the UK, through Government incompetence or intention, falls outside not only the EU but also the Single Market.
We are investigating other issues raised by Brexit and the government's (in)actions, advice is being sought and we will keep you informed as things develop.
Now, however, “tis the season to be jolly”. We wish everyone a happy, healthy and peaceful Christmas.
As was once said “Where there is discord, may we bring harmony. Where there is error, may we bring truth. Where there is doubt, may we bring faith. And where there is despair, may we bring hope”
Have a wonderful festive season and see you again in January!
Very best wishes from us all,
People's Challenge - Supreme Court report – Days 3 and 4
Lord Pannick QC finished his submissions on Wednesday morning, covering the legality of the use of prerogative powers to frustrate legislation, the absence of any Ministerial power to trigger Article 50 in EU-related Acts of Parliament made after 1972 and the need for an Act, rather than any other Parliamentary step, such as a motion in both Houses, to give the authority the law demands.
He began with a guided tour of the 1972 European Communities Act, explaining how section 2 protected the Act against being repealed by implication through later Acts of Parliament, making ministerial action to set it aside very unlikely, and that section 3 would make no sense at all if the Government is right. He then took the court to the European Parliamentary Elections Act 2002. If the Government is correct, he said, Article 50 could be invoked nullifying every right it created despite the Act remaining on the statute book. Similarly, the Communications Act 2003 imposed regulatory functions on Ofcom to enforce EU law which would be senseless were Article 50 invoked without Parliament first deciding how to deal with them. Parliament needed to be fully involved so that its intentions in passing such legislation were not frustrated.
Next, Lord Pannick discussed the De Keyser case. “Have I been mispronouncing that case all my adult life?” asked Lady Hale. “You say De Keyser, I say De Keyser” quipped Lord Pannick, making the first joke in legal history to be reproduced for charity in T-shirt form.
“Whatever it is called” he continued “that is not the only type of case where the courts will impose limits on the exercise of prerogative power. Here, we submit there simply is no prerogative power to act under a treaty so as to defeat, nullify, frustrate statutory rights. That is one additional principle. Another principle is where the exercise of prerogative powers would frustrate the provision made by Parliament; that is ex parte Fire Brigades Union.”
Mr Eadie was therefore wrong, said Lord Pannick, to argue that the De Keyser case set the only limits on prerogative power. As for the argument that post-1972 legislation showed Parliament setting limits on the prerogative but deliberately choosing not to in relation to Article 50, this was wrong too because the Green Paper for the Constitutional Reform and Governance Act 2010 showed the Government’s intention had been only to replicate the Ponsonby Rule and was mindful of further legal protection where there are “treaties that require changes to UK law… the enactment of prior legislation which, of course, requires the full assent of Parliament”. Other statutory changes had been made to increase the powers of the then European assembly.
Lord Pannick and the Justices then debated the effect of the 2015 EU Referendum Act. Might it be said that the 1972 Act had ‘clamped’ the Government’s power to use the prerogative to change law but the 2015 Act had “dismantled” that clamp, asked Lord Kerr. Lord Pannick said that must be wrong because the 2015 Act said nothing at all about empowering ministers, less still changing 40 years of constitutional arrangements, and would need very clear language to have that effect. What legal effect did it have then, Lord Neuberger wondered. Lady Hale beat Lord Pannick to the answer: “But the Act did have an effect. It provided for the referendum.”
Last, Lord Pannick discussed what would need to happen were the court to dismiss the appeal - nothing short of express parliamentary authorisation for the invocation of article 50 would do and that would need to be in the form of an Act, not a resolution because only an Act can change the law. Lord Sumption summarised this point neatly a little later: “resolutions are political acts, whereas legislation directly affects the law.”
Dominic Chambers QC followed with submission for Mr Dos Santos, tracing the history of the parliamentary sovereignty principle, the way it dovetailed with EU law (“EU law rights solely take effect under English domestic law through the will of Parliament”) and the 2015 Act. It was identical in structure and purpose to the Act which set up the 1975 EEC referendum, that time, the Government had accepted Parliament would need to pass further legislation had there been a ‘leave’ majority.
Next the court heard from QCs David Scoffield and Conan Lavery arguing the appeals brought against Mr Justice McGuire’s judgment in the McCord, Agnew and others case which was decided a few days before the Divisional Court gave judgement and came to a different conclusion. Mr Scoffield first argued that the Northern Ireland Act 1998, like the 1972 Act, was not neutral on the U.K.’s continued membership of the UK – it assumed that it would be a member and created rights and duties based on the assumption with the effect that it would need to be repealed, or substantially amended, before notice could be given under Article 50. It was a “further conduit” for EU law to pass into UK law. Both the Good Friday Agreement and the British-Irish Agreement reinforced this, he said, as was recognised by Lord Bingham in the Robinson case.
Secondly, invocation of Article 50 without Parliamentary authority would “circumvent” the arrangements had been made with Northern Ireland for legislative consent motions endorsing future constitutional changes. In other words, the Government was attempting to use a prerogative shortcut when the lawful route involved consultation with the representatives of the people of Northern Ireland. Mr Lavery said he went even further. “It would be unconstitutional to withdraw from the EU without the consent of the people of Northern Ireland”, he submitted, because “being part of the EU was “part of a constitutional settlement” envisaged by the Good Friday agreement and there had been “a partial transfer of sovereignty”.
They were followed by the Lord Advocate of Scotland, James Wolffe QC, who argued "the power to change the laws of Scotland were given to parliament, and to those who parliament has authorised, and not to the Crown". That sounded in the Claim of Right Act 1689 and the Act of Union of 1707. The Sewel Convention meant “that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament”. When it came to invocation of Article 50 “the United Kingdom has to make that decision in accordance with its constitutional requirements. I say that those constitutional requirements include an act of parliament” and that Act had to be preceded by a legislative consent motion in the Scottish Parliament.
Mr Wolffe’s submissions were concluded on Thursday morning. He was followed by Richard Gordon QC for the Welsh Government who made an opening submission that the case was “elementary, a child of six, with respect, could understand this point”. Lord Carnwath was sceptical “your child analogy does not really work, because obviously the child is told he cannot go out in the garden, still has the power to go out in the garden, and indeed he may well disobey the constraint and do it.”
Mr Gordon then developed similar arguments to those of the Scottish Government. Consultation with the devolved administrations over certain decisions was "the only glue" holding together the UK constitution. By evading the, the Government was trying to "drive through" constitutional change of a "seismic nature". But some Justices wondered what this added to the main Miller argument. Lord Mance asked “If we agree with Lord Pannick and reject Mr Eadie, your case is largely unnecessary, except insofar as you rely on the Sewel convention." Mr Gordon replied “Yes. Yes.”
Next was People’s Challenge QC, Helen Mountfield, the first and only female advocate to speak in the case (though not the only barrister – Anneli Howard and Jess Simor QC are in the Miller and Dos Santos teams).
“My clients are a group of ordinary British citizens, and a Gibraltarian citizen.” Helen began. “They are all people who will be affected, in very significant aspects of their lives, by a decision to leave the EU and the profound changes that this decision will make to the law of the United Kingdom and their rights as European citizens. They have been crowd-funded by many thousands of relatively small donations from private individuals.”
They were not asking the Court “to decide whether, in the light of the result of the referendum, the United Kingdom should leave or should not leave the EU. Nor is it being asked to compel either the government, or Parliament, to do anything. All the Court is being asked to do is to consider whether, as a matter of law, an intended act of the Appellant, to notify the EU of a decision to leave on behalf of the UK, would be lawful in the absence of express statutory authority.”
By arguing that authority was not needed Mr Eadie “invites this court to find that ‘the Government can trigger Article 50 in exercise of the royal prerogative, even though this will alter domestic law, because it has what he described as “untrammelled” or “unconstrained” prerogative power. We disagree. We reject the false assumption that the foreign relations prerogative extends to permit the government to dispense with national law.”
Mr Eadie had chosen the wrong starting point for the legal analysis “because it conveniently by-passes the biggest hurdle which he faces in his appeal.” The right one was to ask “what are the limits if any of the prerogative power to make and unmake treaties?”
The answer to that was that “there is no prerogative power to change or dispense with the law as it stands outside the prerogative, whether that pre-existing law is contained in the common law or in Acts of Parliament”. That was clear from the ‘historical inquiry’ Lord Bingham had said was needed in all case where prerogative power was in dispute. Mr Eadie had accepted that, Helen added, “but it is striking that despite positively commending that approach to you, Mr Eadie did not undertake any such enquiry, but put his claim for a wide untrammelled prerogative to change the law at the basis of general assertion.”
The People’s Challenge team had undertaken the inquiry, she said, and the results were striking, Helen explained. The Case of Proclamations, the Bill of Rights, Article XVIII of the Union with Scotland Act 1706, the King v London County Council, Bancoult No 2., Nicklinson, Pretty, Fitzgerald v Muldoon, Fire Brigades Union and Hayden all show that the prerogative cannot generally be used to dispense with or suspend the law of the land. And there was nothing special about the foreign relations/treating making prerogative in this sense as the authorities in our Written Case demonstrated. There was an “orthodox” answer to the question the case raised. The historical cases gave the answer: the foreign relations prerogative cannot be used to change the law or to vary the sources of law which apply in the UK.
Further, though no judge had been asked to decide whether the UK could withdraw without an Act of Parliament, a series of them had said they assumed that was so. For example, in Blackburn Lord Denning had said “[i]f her Majesty’s Ministers sign this treaty and Parliament enacts provisions to implement it, I do not envisage that Parliament would afterwards go back on it and try to withdraw from it. But, if Parliament should do so, then I say we will consider that event when it happens. We will then say whether Parliament can lawfully do it or not.”
Helen’s second key submission was that, by triggering Article 50, the Government would in fact dispense with law, and remove EU law rights. The People’s Challenge group and those who support them “consider that their EU citizenship is a fundamental part of their identities and that, if they are to be deprived of it, their elected representatives in Parliament should, in law, be responsible for that”, she told the Court.
EU law, and the rights that flowed from citizenship “is part of domestic law so far as this court is concerned, ‘because Parliament has so willed’” as Lord Mance had said in the Pham case.
Yet the Government argued that by passing the 1972 Act “Parliament simply created an empty legal vessel, which the Minister could, at any time, fill or empty at will by using his foreign relations prerogative.” That, Helen submitted, “is not right on the language of the Act, and it is not right when you look at statutory intention.” It could not be squared with the EU Treaties themselves becoming a feature and source of law under the 1972 Act, its purpose or the very serious consequences for rights that could not be replicated if the Government was correct.
Helen finished her submission by responding to two questions the Justices had raised earlier in the week. First, could the 2015 EU Referendum Act in some way revive or legitimize use of a prerogative power put into abeyance by the 1972 Act? The answer was ‘no’. There was no power to do away with rights in the first place, but even if that was wrong, clear, and express statutory language was needed. The 1972 Act was a constitutional statute. It could not be overridden by assumptions or implications. To hold that the 2015 Act, by implication had such an effect would be an act of judicial legislation. As for the legislative arrangements for making a decision on whether another state could withdraw from the EU, these had nothing to do with the UK’s own withdrawal.
The People’s Challenge was seeking “to uphold the Divisional Court’s judgment not only for its determination of the issue before this court, but also because of the importance, in a democratic society, based on separation of powers and the rule of law”. The Court should dismiss the Government’s appeal.
Helen was followed by Manjit Gill QC speaking for non-EU national carers of EU national children. “This is no time to turn a flexible constitution into a slippery one and let go of its bedrock fundamentals”, he argued. Patrick Green QC for Fair Deal for Expats then argued that ministerial involvement in EU law making was illustrative of parliamentary sovereignty in action, not unrestrained use of the prerogative.
Lord Keen QC and James Eadie QC then mounted their last stand for the Government on devolution issues and the main issues in the case respectively. “We do not assert a power to repeal the Dangerous Dogs Act,” Mr Eadie began, taking the Court back to one of Lord Pannick’s first submissions about that legislation having greater constitutional status than EU law if the Government was right. But it backfired. Had the Dangerous Dogs Act being an EU directive, but identical, it could be disapplied using Article 50, he accepted. Mr Eadie’s closing gambit was to draw attention to Wednesday’s House of Commons resolution calling on the Government to give notification. This too failed to impress the Justices. “If the resolution had been enough for your purposes, then there would have been no need for this appeal” Lord Sumption shot back.
Lord Neuberger adjourned the case indicating that judgement would be forthcoming in the New Year as soon as possible.
Before then, there will be one further update discussing what could happen next, depending on the outcome.
Representing the People’s Challenge today…
The legal team has been working overnight on the submissions to be made to the Supreme Court today, so an update summarising yesterday’s and today’s hearing will follow tomorrow.
- who the People’s Challenge group are and the fact that they are crowd-supported;
- the importance of the legal principles which divide power between the limbs of the state, and in ensure that they do not illegitimately intrude onto one another’s territory;
- the proper, constitutional role of Judges;
- why the government argument for “untrammelled” and “unconstrained” prerogative power begins at the wrong starting point - conveniently bypassing the most significant legal hurdle the government has to jump over which is to show that there is prerogative power to take away ordinary people’s statutory citizenship rights;
- the right starting point is a historical inquiry to establish whether the prerogative has ever gone that far in modern times – it has not, as the cases show;
- there are no cases that support the Government position that the prerogative can be used to take away statutory rights - and the only one they have relied on, McWhirter does not actually help them;
- triggering Article 50 would destroy citizenship rights - rights which the courts have recognised as fundamental;
- they cannot be replaced as our Annex shows;
- the 1972 European Communities Act does not allow citizenship rights to be taken away by executive action - its purpose and language clearly shows that it was the means for granting those rights and making EU law a source of domestic law which all UK nationals could benefit from – and enforce;
- if the Government is right, the consequences do not stop with Article 50 - it will be able to strip away almost any right by agreeing to do so in a treaty or withdrawing from a treaty;
- the 2015 Referendum Act does not give the Government any authority to take this sort of step – in relation Brexit or otherwise – and if that had been Parliament’s intention it would have said in clear language of the kind used in the Acts of Parliament which established the alternative voting referendum and future referendums on a united Ireland; and
- the People’s Challenge Respondents ask the Supreme Court uphold the Divisional Court’s judgment not only for its determination of the issue before this court, but also because of the importance, in a democratic society, based on separation of powers and the rule of law. EU citizenship is a fundamental part of our identity. If we are to be deprived of it, our elected representatives in Parliament should, in law, be responsible for that.
People’s Challenge – Supreme Court report: Day 2
As the video and transcripts of the Supreme Court hearing’s second day demonstrate, a packed court room is no guarantee of rapt attention in a case that involves dozens of technical points and bundle references as well as the most important constitutional principles.
But members of the public present and on line watchers who stayed with the hearing until 2.45PM were treated to a masterclass in advocacy by Lord Pannick QC, Gina Miller’s lead barrister.
Within minutes he had broken the ‘silence of Parliament’ much relied upon by the Advocate General and MrEadie QC with the barking of dangerous dogs, the clacking of lobster claws and the puttering of an 19th century steamboat engine.
The day began with further legal argument from James Eadie QC for the Government, however. As this is his client’s appeal, he will also be the last to speak on Thursday, replying to the arguments others have made. He started yesterday with more criticism of the Divisional Court’s approach.
It had been wrong, he said, to characterise what Parliament had done in 1972 as introducing “EU law into domestic law in such a way that this could not be undone by the exercise of prerogative power" as all rights were always “dependent”on our relationship with other European states. They were “inherently limited”. The Government could, and now can and will, “remove a swathe of those rights”.
Mr Eadie was questioned about the relevance of the Great Repeal Bill, which the Government plans to use to preserve some EU rights in the UK. The Prime Minister’s statement on it might be though to be underpinned by“eternal optimism” he said, as he associated work would“involve years of entertainment to come”. He accepted Parliament’s future actions could not help interpret a 1972 Act,unsurprisingly.
Baroness Hale and Lord Sumption both pointed out that many rights could not be replicated, would not develop or be enforceable in the European Court – a point discussed in detail in the People’s Challenge Written Case Annex. Mr Eadie said “I accept that”.EU rights would be dealt with “by policy area”. Civil servants and ministers “will look at, I don't know, farming… They are going to say: what are we going to do now about farming?”
None of this can be reassuring to those who currently rely on EU rights for their employment, business activities or where they live. The Justices were also troubled about his submissions on the Bill. “I think you’ve just given two diametrically opposed answers to the same question in the last five minutes”, Lord Sumption observed. “We’ll have to look back through the transcripts and see which one we agree with then,” Lord Carnwath quipped.
In contrast to the Great Repeal Bill, Mr Eadie told the Court, the Bill that would be needed to authorise invocation of Article 50 if the Government loses its appeal would have “one line” adding:
“[i]t may be that would lead to all sorts of parliamentary complications and possible additions and amendments and so on, but that is the solution”.
But what Parliament does with any one-line Bill is, of course, for it to decide.
Mr Eadie went on to argue that the Divisional Court had misinterpreted a series of cases to come up with a new, broad constitutional principle that “you cannot alter the law of the land” using the prerogative. It was:
“uncontroversial that the prerogative cannot be used simply to countermand laws passed by Parliament… but one needs to exercise some caution, as we have already seen, in a variety of different and perhaps more or less subtle ways, and sometimes one can say it is altering a fact, and sometimes one can say it is doing something in a slightly special context, and context is all, of course… We also do not accept that there is any principle corresponding to that identified by the divisional court, to the effect that the prerogative to make or withdraw from treaties cannot be exercised so as to have the effect of altering domestic law.”
Mr Eadie showed the Court a single Canadian case, Turp, arguing this demonstrated withdrawal from an environmental treaty could happen despite the Canadian Parliament having passed an Act to give effect to it. But Lord Sumption pointed out:
“presumably the Act giving effect to Kyoto would have been unaffected by the withdrawal from the treaty on the international plane.”
Mr Eadie then showed the Court a note on the EFTA agreement. Lord Mance asked:
“Did the EFTA scheme involve any sort of directly effective rights such as is the subject of section 2 of the 1972 Act?”
Mr Eadie replied “Not in that way.”
The Justices did not appear to find either example particularly helpful as a guide to what the law requires in the special context of EU law, where rights are granted by statute.
Much was made in the Government’s Written Case of blogs by Professor John Finnis drawing an analogy with double taxation treaties. In the end, Mr Eadie decided to say little about them:
“My Lords, I think given the time, what I would prefer to do if I may is leave double taxation as not least because of the incredible complexity of it, and it would take me quite some time to walk you through it, and I would probably be asked all sorts of answers I didn't know the answer to.”
Mr Eadie was followed by Lord Keen QC, the Attorney General for Scotland, supporting the Government on Scottish, Welsh and Northern Irish issues, then John Larkin QC, Northern Ireland’s Attorney General who elaborated on the position in Northern Ireland. There were no metaphorical fireworks in their arguments, simply a series of flat denials: “it’s perfectly clear that the matter of foreign relationships, foreign affairs and our relationship with the EU is not within the competence of the devolved legislatures”, so the Sewell Convention had no effect, even though it now had statutory force; the special responsibilities of the devolved governments for EU law did not stop the UK government from withdrawing from the EU; the British-Irish Agreement; the Belfast(Good Friday) Agreement had no legal force, they said; and in any case, those agreements, despite anticipating the UK and Ireland being in the EU, did not depend on that remaining so.
Before finishing his submissions and, oddly, walking out of the courtroom, Mr Larkin delivered an impassioned plea to the court not to permit“constitutional change” by thinking, as he himself sometimes had, that “a well placed litigation lever can move the world”.
But this misses the point of the Article 50 case. The claimants, interested parties and most interveners are not attempting to change anything - they want to preserve Parliamentary sovereignty as it has been for hundreds of years.
This was one of the themes of Lord Pannick’s faultlessly delivered submissions which are well worth watching on the Supreme Court’s catchup video feed. Opening with “If the government is right…the 1972 European Communities Act has a lesser status than the Dangerous Dogs Act”, he then told the Court he would be making seven overarching points.
First, the 2015 Referendum Act gives ministers no prerogative power to trigger Article 50. That step is not mentioned.
Secondly, while prerogative power is used to enter into new treaties such as the EU treaties, it cannot be used to change the UK constitution.Developing this, he told the Court:
“Now, it is of course rare to find examples of the treaty-making prerogative being used by ministers in an attempt to frustrate statutory or common law rights without authorisation from Parliament. This is a rare phenomenon and it is rare because ministers normally recognise and respect the basic constitutional principles that are set out from the Case of Proclamations onwards, but there are examples in the books of ministers stepping over the line or the Crown stepping over the line.”
He then took the Court through the Parlement Belge and Walker v Baird cases about an impounded boat and lobster fishing regulation. Eve in these obscure contexts, the Courts had been careful to ensure the Government acted within its powers.
Thirdly, he submitted the Government must demonstrate Parliament has expressly handed over powers to ministers to overwrite legislation. It had not here.
Fourthly, Parliament did not intend the 1972 Act to create ministerial prerogative power to sweep away membership.
Fifthly, Ministers cannot use prerogative power to frustrate legislation.
Sixthly, none of the European Union-related acts created over the last four decades give ministers power to trigger Article 50.
Seventhly, only an Act of Parliament can take away the rights linked to the EU that have been created since 1972 membership: “[i]t is so obvious, so basic… these are matters for Parliament."
Lord Pannick spoke for much of his one hour and 45 minute slot uninterrupted, covering the first four of these points. On the scope of the prerogative, he said:
“we for our part commend to the court the valuable historical analysis in Ms Mountfield's written case… she will speak in due course”.
The remaining three of Lord Pannick’s ‘magnificent seven’ arguments will be developed later this morning.
Supreme Court report: Day 1
Yesterday was the first of four intense days of legal argument from the opposing legal teams in the Article 50 case. The hearing can be viewed on line and there has been insightful Twitter coverage from Jolyon Maugham QC, Schona Jolly, the Independent and live updates from the Guardian which will continue through the week. There was massive coverage in the press and other media from the 80 journalists at Court. Transcripts of every word spoken (including, unfortunately, what pass for jokes in legal circles) are available on line.
These People’s Challenge team reports have a different purpose, which is to provide our CrowdJustice supporters with a concise insider’s overview of how the arguments are developing and the Court’s reaction.
Lord Neuberger opened the hearing by making an Order to protect the identities of some of the parties (the AB children and carers) and address information relating to others, including the People’s Challenge group. He explained:
“We have made this order largely because various individuals have received threats of serious violence and unpleasant abuse in emails and other electronic communications. Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law. Anyone who communicates such threats or abuse should be aware that there are legal powers designed to ensure that access to the courts is available to everybody.”
He then welcomed those present in court and watching on line, acknowledging the public interest, but emphasising that the “wider political questions” surrounding Brexit were “not the subject of this appeal”. Rather it concerned: “legal issues and, as judges, our duty is to consider those issues impartially and decide the case according to law”. Every party to the case had accepted the 11 Justices were impartial and should not recuse themselves, he noted.
These themes were picked up in the opening of the Government’s case by the Attorney General, Jeremy Wright QC, who acknowledged the claim concerned “a clear question of law” that had been “properly bought” to court for determination. This marked a significant, and welcome, shift from the position taken by the Prime Minister some months ago.
Mr Wright then gave an outline of the Government’s case. There had been an electoral commitment to hold a referendum and to implement the result. The product was the 2015 EU Referendum Act, and a majority of those voting had voted to leave, something the Divisional Court had treated as “legally irrelevant” when concluding the prerogative could not be used to bring about departure. It has been wrong to do so, he argued. There were “legitimate public expectations” to consider.
As to the prerogative, he said, this as not an ancient relic, but a contemporary legal necessity “essential to the effective conduct of public business” in a dualist system of law (where international legal obligations between states and those enforceable by citizens are separate). The prerogative “operates wholly in accordance with parliamentary sovereignty” because Parliament understands its utility, but will limit it when appropriate, albeit “sparingly”. This was a matter of practicality too:
“The need for the Government to maintain control over strategy, policy and operational matters in conducting our bilateral or multilateral international relationships is, we say, clear and compelling.”
Of course, none of these statements of principle are an answer to the People’s Challenge case: that Parliament has legislated to grant citizenship rights that cannot be overridden by the prerogative.
On this, Mr Wright said that Parliament had positively chosen to control the prerogative in relation to treaty notification and ratification using the Constitutional Reform and Governance Act 2010, but only up to a point. The controls it introduced did not prevent the invocation of Article 50, so Parliament must have chosen not to control that. Other opportunities to legislate and introduce controls had not been seized.
This became a major theme of the Government’s case throughout the day. According to Mr Wright and Mr Eadie QCs, Parliament’s ‘silence’ on the use of the use of the prerogative to invoke Article 50 meant it remained sovereign, but that sovereignty was manifesting itself in passive, mute acquiescence to the Government’s use of prerogative power in this context.
The People’s Challenge has a clear, principled answer to this: the Government’s case has the wrong legal starting point. It must show the foreign relations prerogative allows it to take away citizens’ statutory rights in the first place. And it cannot.
Mr Wright went on to make the first novel point of the Government’s case. Parliament, he said:
“… passed the 2015 Act in the clear knowledge, and expectation, that the process by which the exit from the EU would take place was set out in Article 50 of the Treaty on European Union. It knew what would happen when that process was begun, and it took no step, made no provision, imposed no constraint, to prevent the Government giving notice to do so in the usual exercise of prerogative power.”
But no evidence has been produced that Parliament, or even the Government, intended that the prerogative would be used to implement the 2015 Act if a majority voted leave.
“I say Parliament can stand up for itself”, Mr Wright concluded. The exercise of its sovereignty to remain silent and not control the Government’s use of the prerogative should be “respected”.
James Eadie QC then rose to develop the Government’s appeal in detail. Unlike Mr Wright, he was frequently interrupted with penetrating questions, particularly from Lord Mance, Lord Sumption, Lord Carnwath and Lord Neuberger. Here are some highlights.
Opening his submissions, Mr Eadie descried the prerogative as “a power to act according to discretion for the public good" relying on the Burmah Oil case. “Suspicion of prerogative powers accompanied by judicial concern at their exercise” was misplaced. They are “essential”.
A “conduit” allowing “transposition” of the fruits of negotiations at international level into UK law was also needed, he said, but that was the real function of the European Communities Act 1972. It created no rights at all.
Mr Eadie then gave other examples of three other “conduit” statutes. Lord Mance asked:
“Does any of your three examples cater for a situation where the continued operation of domestic legal provisions is affected by whether or not the international position remains the same?”
Mr Eadie accepted none did. The 1972 Act was different in that sense.
Importantly, Lord Mance then asked whether a conduit statute could be used to take away rights completely, leaving none behind (i.e. the effect of invoking Article 50). Mr Eadie said that could happen. Other Justices questioned whether it really was his case that the substance of EU membership could be hollowed out in this way. Lord Mance explored the implications of Mr Eadie’s argument further:
“Mr Eadie, do you say that the European Communities Act 1972 was neutral as to whether the United Kingdom was a member of the European Communities?”
to which Mr Eadie gave this startling reply:
“We say it proceeded on the fundamental assumption that that ultimate decision on the international plane was a matter for Government.”
In other words, membership of the European Community and then the European Union has, for 40 years, been a Governmental decision, not a Parliamentary one. This was no slip - Mr Eadie went on to describe the 1972 Act, one of the most debated in recent history when at bill stage, in this way:
“Parliament was… merely facilitating the membership, should the Government, in the exercise of its treaty prerogative, take the United Kingdom into the EEC.”
Mr Eadie’s remaining submissions focussed on the 1920 De Keyser’s Royal Hotel case, which involved seizure of property in wartime, arguing that it established a principle that the prerogative was unrestricted unless Parliament had imposed control “expressly or by necessary implication.”
Picking up a point from the People’s Challenge Written Case, Lord Sumption said:
“You surely have to ask: what are the limits if any of the prerogative power to make and unmake treaties? If the position is that the prerogative power is only as broad as it is, because the assumption is being made that it does not alter domestic legal rights, then, you know, one may well arrive at a situation in which you just never get to the question of what the statute says, unless it is being suggested that it actually confers a prerogative right to change the law which would not otherwise exist.”
In other words, was the Government subsisting that the law of the land could be changed using the prerogative? Mr Eadie’s response was candid:
“Prerogative power in the field of making of treaties, ratification of treaties and withdrawal from treaties, is and always has been a general power, untrammelled by any such implication which can have… impacts into domestic law through any or all of the various models that we have analysed our in our cases.”
To sum up the Government’s case so far, then, prerogative power is “untrammelled”, the law of the land can be changed using it, Parliament was “merely” the facilitator of the exercise of that power when we joined the EEC and has now silently consented to its use to take away all UK citizens’ EU rights. There is something unsettlingly Orwellian about the Government’s case so far and there is nothing to suggest the Justices are persuaded.
Mr Eadie’s submissions continue this morning, before he hands over to Lord Keen QC, the Advocate General for Scotland, and John F Larkin QC, Attorney General for Northern Ireland. Both support the Government and will argue against the devolution arguments put by the Scottish and Welsh Governments and the Northern Irish appellants.
Britain’s ‘unwritten constitution’ and its highest court are put to the test as Article 50 hearing begins.
The UK’s 11-Justice Supreme Court will hear the Government open its appeal today against the ruling that it cannot use the Royal Prerogative to take the UK out of the EU by triggering Article 50. If the ruling stands, the process will be subject to parliamentary control and oversight and primary legislation will also need to cater for the EU law rights and duties woven into the UK’s devolution arrangements.
Arriving at Court, the solicitor representing the crowd-funded People’s Challenge group, who are resisting the appeal alongside Gina Miller and Dier Dos Santos, said they were “confident” its Justices would apply the “clearest principle” of the unwritten constitution - “the empowerment of Parliament to protect citizens’ rights.”
Over 5000 people have supported the People’s Challenge group via CrowdJustice, a crowdfunding platform for public interest cases. The group’s members were formally recognised as ‘interested parties’ at a preliminary hearing last July, and participated to ensure ordinary people’s EU citizenship rights were fully taken into account by the judges dealing with the case.
They have made detailed written submissions arguing that Divisional Court’s ruling should stand complementing those of the Miller and Dos Santos teams and the intervening Scottish and Welsh Governments. The submissions are also backed by an Annex cataloguing the “fundamental and irreplaceable EU citizenship rights” at stake in the case.
The group consists of UK nationals Grahame and Rob Pigney who live in France, Paul Cartwright, a Gibraltarian national who runs Brex-IN, Christopher Formaggia who lives in Wales, Tahmid Chowdhury, a London student and Fergal McFerran, president of the NUS-USI based in Belfast.
Grahame Pigney said today:
“CrowdJustice has allowed us - ordinary UK Citizens and our supporters - to argue that our individual personal rights and benefits are so important that the timing and conditions of a Brexit should be decided by our democratically-elected Parliament rather than a self-appointed Government that wants to behave as if the Glorious Revolution of 1688 had never happened and the Bill of Rights was never written.”
John Halford of Bindmans LLP, the group’s solicitor, said:
“This case puts Britain’s unwritten constitution and its highest court to the test, but we are confident both will withstand it – the clearest principle of that constitution is the empowerment of Parliamentary sovereignty to protect citizens’ rights.”
Julia Salasky, CEO of CrowdJustice, said:
"Thousands of people have donated to the case, and therefore had the chance to take part in one of the most significant constitutional cases of our time. Whatever the outcome of the Supreme Court appeal, it's a victory for the justice system that The People's Challenge is being represented - and we're delighted that it was made possible via CrowdJustice."
The People’s Challenge is represented by John Halford of Bindmans LLP. Our team of barristers is headed by Helen Mountfield QC plus Gerry Facenna QC, Tim Johnston and Jack Williams with David Gregory joining the team to assist with the work for the Supreme Court hearing.
There are others who are also challenging the Government; Gina Miller, Dier Dos Santos, George Birnie with yet more named as part of the respective challenges plus others who have joined as interveners now the Government has appealed to the Supreme Court.
Each of the participating groups, whether Claimants, Interested Parties or Interveners, have their own independent legal teams and they participate as such in court. Obviously there is common ground between the various parties, so the legal teams co-operate to avoid unnecessary repetition.
The People’s Challenge focuses on the threat the Government’s use of the archaic Royal Prerogative poses to the Citizenship rights of UK Citizens whether they are living in the UK or Overseas.
The People’s Challenge raised the funds to challenge the Government through the Crowd Justice website. Nearly 5,000 individuals pledged £170,500 so that we could argue case to protect people’s citizenship rights in the Divisional Court. We have raised another £150,500 in pledges from some 4300 individuals so as to be able to defend the Divisional Court’s decision against the Government’s appeal to the Supreme Court.
Watching the Supreme Court and thanks to all our backers and supporters
Next week we see the penultimate stage in this challenge we have mounted on whether the Government has the authority to use ancient Royal Prerogative rights to trigger Article 50 and take the UK out of the EU.
The Supreme Court has taken the unprecedented step of assembling the 11 Supreme Court judges to hear the Government’s appeal against the Divisional Court’s decision that only the UK’s Parliament has the authority to trigger Article 50.
This decision is of enormous constitutional importance because it goes far beyond the comparatively narrow question of who can trigger Article 50.
The arguments that the Government are now making imply that the Government can remove or modify any rights conferred on UK citizens by Parliament or by common law.
Among those putting these arguments forward are MPs and Ministers who in the past have argued that the Government’s use of prerogative powers should be further constrained, so as to re-establish the authority of Parliament in the face of the creeping extension of executive powers by successive governments.
Our solicitor, John Halford, wrote a piece yesterday and has published it on the Bindmans blog - What those with power always want .
As expected, thousands of people will want to follow the Supreme Court hearing, far more than can be accommodated in the Supreme Court building on Parliament Square.
Fortunately, Supreme Court hearings are streamed on the web and it is possible to watch next week’s hearing in Court One via this page Court 1 - Supreme Court Live on the Supreme Court’s web site.
We have been overwhelmed and sustained by the enormous number of messages of support and help from our backers and supporters, as well as the generosity which has funded the challenge. I have not yet been able to respond to all these messages and hope to do so in the coming weeks.
Please rest assured that they have all been read and that the suggestions on how to build and reinforce the arguments we are making have all been taken into account.
Grahame Pigney on behalf of the People’s Challenge.
What those with power always want
Suppose the Government is right about the legal arguments it makes in support of its appeal. Then, unless there is some significant, but completely unforeseen, political development between now and 31 March 2017, a simple letter will be sent giving notification of the UK’s intention to leave the EU.
The wording will not be elegant. No regret will be expressed. And two years later, unless other EU states agree to a different outcome, UK citizens will lose their EU citizenship rights. Parliament may, by then, have passed a Great Repeal Bill that mimics some of those rights in UK law, but it cannot do so comprehensively or perfectly. The rights that many UK nationals depend on abroad to work, study, trade, receive and provide services, live with family members, receive healthcare, retire and much besides will be gone in their current form.
In the Divisional Court, the Government argued that these concerns were exaggerated. Its third QC, Jason Coppel, submitted that the People’s Challenge had:
“seriously overstated the effect of the decision to withdraw from the EU and the notification of that decision on the rights which are conferred on individuals by UK domestic law…. The proposition that I want to put to you first of all is that UK citizens have very few rights as EU citizens which are enjoyed as a result of the 1972 Act. Of those rights, none are directly affected by notification and as a matter of law, all could be preserved upon withdrawal, should Parliament so choose.”
Our view is that this is simply wrong. That is partly why the EU law specialists in our team, Gerry Facenna QC and David Gregory, produced the Annex to our Written Case cataloguing EU citizenship rights and explaining their fundamental and irreplaceable nature.
That document serves an even more important purpose, however, which is to show the Court just how deep-rooted EU citizenship rights have become, thanks to the series of Acts of Parliament passed so they could grow in the soil of England, Scotland, Wales and Northern Ireland and UK territories overseas, like Gibraltar.
The consequences of the Government being right do not stop at a Brexit without Parliamentary control, oversight or authority, however. To establish the Royal Prerogative can lawfully be used to invoke Article 50 means that the Government has to go much further than arguing it can be used for that purpose. Paragraph 16 of its written case makes this clear:
“… the true position is that acts of the Government in the exercise of the prerogative can alter domestic law”.
In other words, the law of the land is only as durable as the executive decides it should be.
The Government says this is not absolute: Parliament can always protect against the law being changed by “expressly or (possibly) by necessary implication” saying this cannot be done in an Act – see paragraph 64. But this is hardly comforting. Very few Acts of Parliament expressly protect the rights they create from interference by the executive, probably because few parliamentarians would have thought ‘express protection’ was necessary, given our constitutional arrangements. Protection that is ‘possibly by necessary implication’ is only as good as the legal arguments that can be presented in favour of it.
Worse still, many of the rights UK citizens enjoy are not contained in statutes at all, but in the common law. These include the right to procedurally fair decision-making, access to lawyers, protection for confidential legal advice, access to the courts generally and in specific contexts such as individual liberty, protection from torture, privacy, freedom of religion, freedom of speech and assembly to protest and property rights.
If the Government is right each and every one of these rights only survives as long as it choses not to reach an international agreement to do away with them.
Laid bare, the Government’s case is not that it should enjoy prerogative power to implement the result of the EU Referendum. It is that it should, and does, enjoy prerogative power to change any law unless prohibited by an Act. That is a remarkable thing for a Government that includes MPs who once argued for cutting back, and strictly regulating, what was left of the Royal Prerogative so that citizens could have more confidence in Parliament’s role.
But maybe this should not be all that surprising. Those with power always want the same thing - more power. That is why Parliamentary democracy, which balances the exercise of power with checks and accountability, however imperfectly, is something well worth fighting for in the Supreme Court next week.
Speaking time from the Court and arguments from others
We are delighted to confirm that, despite the tight court timetable and the increased number of represented parties now active in the case, the People’s Challenge lead QC, Helen Mountfield, is to be given 45 minutes of court time during the hearing to develop the rights-based arguments in our Written Case published yesterday. Helen’s speaking slot will be at 12 noon onwards on Thursday 8 December following on from the Scottish and Welsh Governments whose own Written Cases can now be found on line, here and here.
Also available today are the cases referred from the Northern Irish courts of Stephen Agnew and others and Raymond McCord, plus that of Northern Ireland’s Attorney General (who opposes them, though without any instructions from the Northern Irish Executive who he normally represents).
The Independent Workers Union of Great Britain has made submissions too, as have Lawyers for Britain Limited, but these will be dealt with in writing only. It is understood over 200 other individuals and bodies have applied to intervene, but none have been permitted to speak at the hearing. There will be a live video feed from the Supreme Court throughout the proceedings and a transcript published twice daily. We will say more about the hearing in a forthcoming update.
Meanwhile, a short Bill intended to create an Article 50-compatible “duty to notify the European Council by 31 March 2017 of the United Kingdom’s intention to withdraw from the European Union” has been published, but as this is a Private Member’s Bill, it is unlikely to make much progress in the Parliamentary process (note, an earlier version of this update suggested the Bill was Government supported, but that was based on an incorrect news report).
The People’s Challenge Written Case – fundamental citizenship rights protected by four hundred years of legal precedent
This morning, the People’s Challenge solicitors filed the 20 comb-bound copies of our Written Case required by the Supreme Court for next week’s hearing.The Case is herein electronic form, published first on Crowd Justice and distributed to our supporters.
The document runs to 39 pages and is supported by dozens of cited cases and other legal materials which form part of 35 volumes of material submitted to the Court’s Justices, a total of more than 14000 pages. The case is the most document-heavy the Supreme Court has ever dealt with.
Despite that, the work on the Written Case and the end product has needed to be disciplined and focused. We were under strict instructions from the Court’s President, Lord Neuberger, to avoid duplicating what the lawyers for other parties, especially Gina Miller were saying. Her team’s excellent Written Case is here. There have also been powerfully argued submissions filed by many others, including the Welsh and Scottish governments and the lawyers acting in the Northern Irish cases, Agnew, McCord and others. We will include links to these in a later update, subject to being permitted to publish them.
Notwithstanding this,the People’s Challenge case covers four of the most important issues that arise in the appeal.
First, it confronts head-on the Government’s argument that the Royal Prerogative can be used to take away rights (whether they are created by Acts of Parliament or common law) unless an Act of Parliament expressly prohibits that happening. This is the wrong legal starting point.The Government has to show that the Prerogative is available for use in the context of withdrawing from the EU – and it cannot.
This is backed up by the second part of the Written Case which reviews four centuries of case law on the use of the Prerogative in this context. That shows that there is no trace of the Courts allowing the law of the land to be altered by the Prerogative since the Bill of Rights prohibited it, but also that the judiciary have repeatedly put a stop to this being attempted by government bodies.
One graphic example comes from the 1931 case, King v The London County Council.There a local authority had granted a licence on ‘nod and a wink’terms that demonstrated its officers would not enforce a statute, the Sunday Observance Act, 1780. Lord Justice Scrutton observed:
“... One is rather tempted to inquire whether the Theatres Committee of the London County Council have ever heard of the Bill of Rights. James II lost his throne, and one of the causes of it was that he took upon himself to dispense with the operation of Acts of Parliament, without the consent of Parliament.”
The third part of the Case is backed up by a meticulously researched Annex that catalogues fundamental and non-replicable EU citizenship rights. It explains precisely why the Prerogative can never be used to extinguish or abrogate those rights because they are granted to UK Citizens by our Parliament.
Last, the Written Case tackles the argument that the European Communities Act 1972 itself somehow cut down Parliament’s future role in protecting UK citizens. That’s clearly wrong. Though the Government didn’t argue that the Parliament that passed the 1972 Act bound that of today (which would breach a long-established constitutional convention), the effect of its argument succeeding would be the same.
We should hear from the Court very soon about how much time our lead barrister, Helen Mountfield QC will have to develop these arguments during the hearing.
Developments in Parliament and the Supreme Court
We had planned to post a detailed update yesterday on our new Crowd Justice campaign page, but events have been very fast-moving and we’ve needed to take stock of them. This is just a snapshot with more detail and analysis to follow.
First, yesterday saw a Government statement and debate in the Commons about the Divisional Court’s decision. More on this to follow, but the key points to note are that the Government continues to accept, rightly, that the extent of its powers needs to be determined by the courts and that the courts’ decisions must be respected, however ‘disappointing’ they may be. This is important because a number of bloggers have continued to argue that the courts had no business in hearing the case at all.
The Government also appears to accept that, if the Royal Prerogative cannot lawfully be used to take the UK out of the EU, only an Act of Parliament will do.
Secondly, the Supreme Court has, unsurprisingly but very quickly, granted the Government permission to make its ‘leapfrog’ appeal which will be heard from 5 December 2016, most likely over the following four days. The Scottish and Welsh Governments both plan to intervene and Nicola Sturgeon has made it clear that she fully supports the Divisional Court decision.
There are also press reports that Leave.EU may intervene, though to do so it will need to persuade the Supreme Court it ought to be granted permission to make submissions in the public interest.
As far as we know, all the parties represented in the Divisional Court will continue to be involved. It is not yet clear whether the Northern Ireland High Court will allow a leapfrog appeal from Maguire J’s decision to be heard along with the Miller and others litigation.
On funding, we are now very close to our stretch target thanks to the sustained support over the last few days. Thank you again. We have asked the Government to agree a ‘reciprocal costs cap’ as was agreed in the Court below, so we should soon have certainty on how much we need to budget for to cover a share of Government costs in the highly unlikely event its appeal succeed.
Article 50 – today’s judgment in a nutshell
This update is by John Halford, Partner at Bindmans LLP
On 20 September 1610, Sir Edward Coke, the then Chief Justice, was asked to give a ruling on whether the King could use a Royal Proclamation to suspend an Act of Parliament that had authorised merchants’ trading activities in London. He identified the case as one "of great importance” because it concerned the accountability of “the king to the Commons". Coke then ruled that the Royal Prerogative could not be used in this way to override rights Parliament had granted.
This morning, 416 years later, Court 4 was packed with lawyers, journalists and members public many of were wondering whether Coke’s successor, the current Lord Chief Justice, Lord Thomas, was about to defend Parliamentary Sovereignty in a similarly courageous way. And minutes later he, the Master of the Rolls and Lord Justice Sales, did just that in a unanimous judgment. The ‘summary of the summary’ was simply this: “the most fundamental rule of the UK constitution is that parliament is sovereign”.
The Court went on to note that all parties in the case agreed the 2016 EU Referendum was advisory only and so had no effect on government powers or those of Parliament. The Referendum was important politically, of course, but had no effect in law. Instead, as revealed in the full judgment (R (Miller and Others) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin)), the Court’s focus was very much on the impact invoking Article 50 would have on ordinary peoples’ rights.
On that, the claimants, interested parties including the People’s Challenge group, and the interveners had also agreed with the Government that withdrawal from the EU by Article 50 would affect UK citizens’ rights that could not be replicated following UK departure from the EU (such as rights to vote, complain to the Commission or to seek a ruling from an EU institution) along with the rights they can exercise in other EU countries (such as free movement and access to health care). The Government had also accepted Article 50, once invoked, could not be reversed.
It followed, said the Court, that triggering Article 50 would inevitably strip away rights with no realistic prospect of Parliament restoring them. Critically, these were rights that had been granted through Acts of Parliament, starting with the European Communities Act 1972. It would be “surprising” if they could be removed by prerogative power, especially given the strong constitutional presumption that Parliament does not, unless it says so expressly, intend the government to have power to change the law of the land using the prerogative. That was a particularly strong presumption here given the importance and scale of the rights at issue. Drawing on a metaphor used by the People’s Challenge QC, Helen Mountfield, in her submissions, the Court observed, that having ‘switched on’ EU law in the UK using a series of statutes, it was implausible that Parliament had anticipated the government could use the Royal Prerogative to “switch it off again”. The proper interpretation of the 1972 Act, informed by constitutional principle, was that the Royal Prerogative had been excluded by incorporation of EU law into UK law.
The Court said it was not necessary to deal with the arguments raised about the Act of Union 1707 but, taking account of points made by the People’s Challenge in their submissions about the special position of devolved nations including Northern Ireland, cast doubt on last week’s judgment of Maguire J in the Belfast High Court. Maguire J will hear an application next week seeking permission to appeal from his own judgment direct to the Supreme Court.
And that is where the Miller case is also headed: Lord Thomas issued a certificate allowing a ‘leapfrog’ appeal from today’s ruling which will be heard by the Supreme Court early in December.
The People’s Challenge remains an interested party and so is entitled to be involved. The three good reasons for it to be involved in this litigation, backed by thousands of crowd funders, remain. So preparations are already underway to defend today’s judgement – and in turn Parliamentary sovereignty – at that hearing. But the importance of today’s ruling cannot be overstated. Lord Coke would be proud, not only of the judges that have followed in his footsteps, but that ordinary UK citizens were able to contribute to the case that made that possible.
People Challenge salutes Divisional Court as ‘guardian of parliamentary democracy’ -and vows to defend Parliamentary sovereignty against the Government's appeal
In a landmark decision today, the Divisional Court upheld a judicial review brought by Gina Miller, Dier Dos Santos, the People’s Challenge and others and ruled that the Government cannot use the Royal Prerogative to leave the EU by triggering Article 50.
The Court’s judgment means that the process must be subject to full parliamentary control and oversight. But the government is pursuing an appeal which must be resisted. The People’s Challenge group has therefore opened a new CrowdJustice campaign in order to raise the money urgently required to defend Parliamentary sovereignty against the government's appeal which is likely to be heard in early December 2016 by the UK’s Supreme Court.
Thanks to almost 5000 people supporting the People’s Challenge group via Crowd Justice,the interested parties who successfully argued the claim should be allowed included ex pats Grahame and Rob Pigney, Paul Cartwright, a Gibraltarian national who runs Brex-IN, Christopher Formaggia who lives in Wales, Tahmid Chowdhury, a London student and Fergal McFerran, president of the NUS-USI based in Belfast.
Grahame Pigney said today:
“We welcome this decision, which clearly establishes the UK’s Parliament as the sovereign authority in terms of the decisions required following the Referendum on 23rd June. The alternative would have meant a horrifying executive power grab that has no place in a modern democracy.
We started this challenge in order to protect parliamentary sovereignty and the rights of millions of UK Citizens; the Court’s decision has justified our action. Hopefully the debate on and passing of primary legislation by Parliament will result in a more positive and less divisive way forward for the UK.
We also take pride in our judges, who have shown themselves to be true guardians of parliamentary democracy through this judgment.
The Government will no doubt appeal. It can expect us to defend our position with the same vigour and commitment as we brought to bear when arguing the case in the Divisional Court.”
Rob Pigney said:
“The People's Challenge has made a decisive contribution to the success of this case in the Divisional Court. Our backers have been fully vindicated. Although it is doubtful that the Government is going to abandon its ambitions altogether, I feel confident in quoting one of my heroes and saying ‘Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.'”
Our solicitor John Halford of Bindmans LLP said:
“The oversight, control and democratic accountability needed for decisions on Brexit have to match the consequences of those decisions for UK citizens. That is why our constitution empowers Parliament, not the government, to take these decisions. The People’s Challenge group and thousands of backers unhesitatingly committed to defending Parliament’s sovereignty. They have prevailed so far and will resist the anticipated government appeal in the Supreme Court.”
As before, during the Supreme Court stage, the group will provide regular updates on the progress of the preparations for the Court hearing, the hearing itself and the funding campaign.
Later today there will be an update on the group’s Crowd Justice pages giving an analysis of the Divisional Court’s decision.
Divisional Court - Judgement Day
Judgment in the Article 50 challenge will be handed down at 10am, tomorrow 3rd November 2016 in Court Room 4. An appeal by the losing party or parties, ‘leapfrogged’ direct to the Supreme Court to be heard early in December, is very likely.
The People Challenge will be launching a new fundraising appeal tomorrow to cover our lawyers’ costs and other expenses associated with us participating in an appeal as interested parties - we consider it is vital that ordinary people’s EU citizenship rights continue to be defended in this incredibly important case.
Challenges in Belfast High Court to Government Triggering Article 50
Judgment was given today by the Belfast High Court dismissing challenges brought on the basis of arguments about the ramifications of invoking Article 50 for the Good Friday Agreement.
These were different arguments to those we developed at the Divisional Court hearing. The Belfast High Court emphasises this distinction in its judgment. Our legal team will, of course, review what the Belfast Court has said.
Meanwhile, we continue to look forward to the Divisional Court's judgment which hopefully will be given in the next few days.
Court report: day 3
Yesterday was the third and final day in the High Court hearing, finishing the first stage of one of the most important constitutional cases ever heard.
Once again we want to thank each and every one o four 4918 supporters for making this happen. Without your support we would not have been able to bring this case and present Court with our important arguments. Special thanks also go to Jolyon Maugham QC,who conceived of a crowdfunded challenge to the government’s position, to our legal team for presenting the case so compellingly and to the Royal Courts of Justice staff for arranging live video feeds from the hearing room and transcripts every day so the public could follow the case closely. The complete set of transcripts,including that made yesterday, is available here.
What follows are some highlights from yesterday.
Most of the day was taken up with further submissions of the Government from Mr Jason Coppel QC followed by the replies of Lord Pannick QC for Gina Miller, Dominic Chambers QC for Mr Dos Santos, Helen Mountfield QC for the Peoples Challenge, Patrick Green QC for the expat interveners and Manjit Gill QC for a group of children and carers.
However,the day began with Mr James Eadie QC returning to Court to deal with questions the Court had asked on Monday.
Importantly,Mr Eadie continued to argue that there would be some Parliamentary involvement within the process of leaving the EU. He submitted that in line with the standard procedure for international treaties the agreement following the enactment of Article 50 the new treaty between the EU and the UK “will be subject to ratification process in the usual way”. In that it would likely require an Act of Parliament at ratification stage.
The main difficult with this submission is obvious. If there is an agreement with the remaining states (and there may not be) and if it results in a treaty which requires ratification (and it may not result in that kind of treaty) Parliament can only agree to or reject the treaty. The Article 50 process will be well underway and, two years from notification, we will automatically leave the EU, treaty or not, unless this period is extended.
The Court picked up this point straightaway, and questioned Mr Eadie about it at length. For example, the Lord Chief Justice asked:
“But could the United Kingdom and the European Union agree it didn't need ratification? Is that what you mean?”
to which Mr Eadie replied “they could”.
Mr Eadie then referred to the infamous ‘The Great Repeal Bill’ stating that it will:
“drag in where possible current EU law rights that are not already enshrined in domestic legislation in the first place… Parliament will then,again, necessarily, and inevitably, be involved in any further alteration to the newly domesticated rights.”
But these rights would not include those linked to the rules of the ‘EU club’, nor rights which Parliament had no power to grant, such as free movement rights.
Finally from Mr Eadie,there was an important concession: that the Court was legally entitled to rule on the issues in the case. On this the Lord Chief Justice commented “as far as I understand it, justiciability is no longer an issue.”
The Government then passed the baton to Mr Jason Coppel QC to make submissions in response to our own and the interveners’ arguments. Mr Coppel asserted that a right free movement right, to live in France:
“is not a right which is conferred by the European Communities Act”
“They are [sic] a right against the government not to stop you from leaving the country, or not to deter you from leaving the country, by fining you, for example, and to allow you to come back to France once you have had enough of the good life.”
To this the Lord Chief Justice responded:
“I am sorry, I am slightly baffled. I don't understand why the content of these rights are not controlled by Parliament.”
This was because the Lord Chief Justice had understood free movement rights to have been granted to UK citizens by Parliament through the 1972 European Communities Act, and strengthened through EU Citizenship, as we have argued all along.
Lord Pannick then began his impressive reply by emphasising the key points in his case:
“The defendant accepts that a notification under Article 50(2) will inevitably result in the EU treaties no longer applying to this country [and that] the consequence of the treaties no longer applying is that the rights conferred under section 2(1) of the 1972 Act are stripped away. They are destroyed… we say notification will inevitably cause some statutory rights enacted by Parliament to be destroyed.”
He also stressed that
“…whether there is a new agreement [with the EU] is out of the hands of Parliament.”
Helen developed this in her own reply using a thermostat analogy:
“Parliament has said we want control of this system of EU law. The executive can't turn the heat up unless it has our approval, and the approval of the people in the direct referendum. It can't turn the heat down unless it has our statutory approval.
I say it is quite impossible to say that if they had been asked they would say: but the minister can turn the heating off all together and then take away the thermostat all on his own with no authority a tall.”
Mr Green’s submissions resulted in the biggest laugh of the day (yes,laughing is sometimes permitted in court!) He stated:
“My Lord, finally I turn to the submissions of my learned friend Mr Coppel about the nature and quality of the rights in issue before this court, which, my Lords, may I say were surprising in the sense that advocates use that word, and surprising in the sense that we were all surprised.
There is a fundamental reason for that. That is that they completely overlook the unique legal order on which I have already made some brief submissions, which is an absolute cornerstone of principle for the establishment of the Communities and then the Union, and to approach those questions, ignoring the nature of the unique legal order, is exactly the same as approaching the common law questions ignoring Parliamentary sovereignty.”
The High Court hearing was concluded, approximately two hours over time,with a promise from the Lord Chief Justice to give judgment “as quickly as possible”.
We will of course update you once we receive news of when the judgment will be handed down. Our legal team’s best estimate is two to three weeks from now. In the meantime, there will be another supporters’update looking at the various possible outcomes and what could happen next.
Court report: day 2
Court report: day 2
First, thank you for continue to contribute to our funds throughout the hearing. We are now well on the way to filling the war chest that will be needed for the Supreme Court.
Meanwhile, yesterday was another extended and intense court day, with the Court hearing submissions from the People’s Challenge Helen Mountfield QC, followed by Patrick Green QC for the expat interveners, Manjit Gill QC for a group of children and carers, then the Attorney General Jeremy Wright QC and ‘Treasury Devil’ James Eadie QC. The Independent’s Siobhan Fenton and Jolyon Maugham QC continued to live tweet (intriguingly, in Jolyon’s case, attracting Nicola Sturgeon as a follower). The full transcript is available for those who want the detail, but the highlights follow below.
The day began with this warning from the Lord Chief Justice:
“The court was informed that the principal claimant in this case has been, again,subject to various emails and other communications. We have in this country a civilised way of dealing with things, and it is simply wholly wrong for people to be abusive of those who seek to come to the Queen's courts. If this conduct continues, those who do it must appreciate that the full vigour of the law will be used to ensure that access to Her Majesty's courts are freely available to everyone.”
Helen then pressed on with her submissions, explaining first that the People’s Challenge group agrees that the only prudent approach on the question of whether a Article 50 notification can be withdrawn, once given, is top proceed on the basis it cannot. She also submitted a note on the current state of the parallel Northern Ireland case, McCord, Agnew and others and on the possibility of it being ‘leapfrogged’ to join Ms Miller, Mr Dos Santos and the People’s Challenge in the Supreme Court. The note also gives further examples of individual rights that will be extinguished in two years following an Article 50 notification.
Helen then made submissions about the unique nature of EU law as a product of Parliamentary action, drawing on Lord Manse’s comments in the Pham case: "European law is part of domestic law because Parliament has so willed."
“We say that a prerogative power to withdraw from the EU is implicitly ousted by the European Communities Act, and that is because Parliament has willed,by section 2 and 3 of that Act, that the rights, powers, liabilities,obligations and restrictions, which from time to time are created by,or arising under the treaties which Parliament has agreed to being ratified, and the remedies and procedures provided for by or under those treaties, are, without further enactment, to be given legal effect.”
adding that section 18 of the 2011 European Union Act was enacted to beyond speculation Parliament’s sovereignty over matters of recognition of EU law.
Helen then discussed the relationship between this statutory basis for EU Citizenship rights and the prerogative:
“the reason why the Crown has retained the prerogative power to make treaties is because individuals cannot derive rights or be deprived of rights by them without intervention from Parliament.”
In other words,whatever the Government does at an international law level, it cannot lawfully take away right Parliament has granted via the statute book.
Helen then turned to the People’s Challenge Bill of Rights arguments. That cornerstone of the British constitution states:
“The pretended power of dispensing with laws or the execution of laws by regal authority as it had been assumed and exercised of late is illegal.”
The European Communities Act’s purpose would be illegally ‘disregarded’, she explained, if the Government could make it ineffective using the‘regal authority’ of the Prerogative to invoke Article 50. Helen then showed the court how this had been applied in the Case of Proclamations, where Henry IV unlawfully suspended the Foreign Merchants Trading Act of 1297, The New Zealand case of Fitzgerald v Muldoon and Lord Sumption’s comments about constitutional limitations on the exercise of state power at paragraph 241 of Nicklinson.
Helen then discussed the Act of Union with Scotland – another constitutional statute that would be undermined were Article 50 invoked without Parliamentary authority:
“… after the union between Scotland and England and the creation of a UK-wide Parliament, Scotland kept its independence with respect to its legal and religious systems. That was part of the deal. The Act therefore made special provision to protect the Scottish legal system, and to protect Scots law from alteration without proper Parliamentary consideration.
…if the act of notifying withdrawal from the EU triggers the inevitable removal of public law rights from Scottish citizens and the inevitable alteration to private law rights in Scotland, then these rights cannot be preserved by Parliamentary legislation.”
Last, Helen discussed the devolution arrangements with Northern Ireland, Scotland and Wales which she described as:
“the more recent but nonetheless delicate constitutional balance and relationships between UK government, the UK Parliament, and the governments and legislatures of the devolved nations.”
“removing the elements of EU law which underpin the devolution statutes would remove limitations on the powers of the devolved legislatures and governments to interfere with citizens' rights, it is equally true,and perhaps even more important, that removing EU law from that legal framework will take away competencies that are currently exercised by the devolved governments.”
The Government’s response to these and the other parties’ submissions began with the Attorney General’s submissions. He opened with this:
“The defendant's central submission is that the decision to trigger Article 50 of the treaty on European Union, and to notify that decision, are acts in the making and unmaking of treaties and are classic examples of the proper and well established use of the royal prerogative by the executive in that field left available to it by Parliament; and that the use of the prerogative to give effect to the will of the people as expressed in the referendum was wholly within the expectation of Parliament. We say that despite multiple opportunities for Parliament to do so, the prerogative has not been supplanted or eroded so as to preclude its exercise in the present circumstances.”
In other words, because Parliament has not expressly legislated to limit the use of the prerogative to invoke Article 50, the government believed it has free rein.
He then told the Court:
“we do not argue that an Article 50 notice can be revoked, and we invite the court to proceed in this case on the basis that a notification under Article 50(2) is irrevocable… the defendant is also content to proceed on the basis that as a matter of firm policy, once given a notification will not in fact be withdrawn.”
So, once the ‘bullet’of Article 50 is fired, it will never return to the gun barrel.
The Attorney General then took the Court through the history of the 2015 Referendum Act,conceding that it did not, in itself, give the Government statutory authority to invoke Article 50 (“the government's case is not that the 2015 Act provides the source of power for the government to give an Article 50 notification”).
He went on to submit that a cases, DeKeyser’s Hotel and LakerAirways, showed that only an express or strictly necessary restriction on the prerogative could limit it (note, our answer to these points is at paragraphs 30, 66 and 77 of our detailed written arguments).
Mr Eadie QC developed the Governments’ case in response to the:
“… primary argument, which is that it is not open to the executive to decide that the UK should withdraw from the European Union and commence the Article 50 procedure accordingly, because that would be to use the prerogative power in such a way as to affect or change current economic law, principally statute law.”
“I will also address, but much more briefly because the Attorney has traversed this ground already to some extent, the alternative argument that it is a necessary implication from sections 1(2) and 1(3) of the 1972 Act, that rights enjoyed under section 2 of that Act cannot be substantially altered without prior Parliamentary authorisation.”
Many of his submissions were surprising to the lawyers present and he was extensively questioned by all three judges about them. He argued:
“…we submit that the key question is whether Parliament has left the relevant power in the hands of the executive, notwithstanding that this exercise may,more or less directly, impact upon current statutory rights. So has Parliament left that power in the hands of the executive?”
So, even if statutory rights will be lost, if Parliament has not said expressly that the Government cannot make or withdraw from a treaty with that effect, it can do so freely.
On this, the Lord Chief Justice asked:
“is it the case, and maybe you can come back to this at 2 o'clock, is it the case that you are saying that the Crown has the prerogative power to withdraw from a treaty even if that affects the rights that are accrued under domestic law?”
to which Mr Eadie responded:
“Yes, is the short answer to that question.”
He went on to say what would happen to individuals’ rights: those that were part and parcel of EU membership (‘the rules of the club’) would be gone forever;those that had been incorporated into UK law through specific statutes, such as working time regulations would be preserved through the time being under the Great Repeal Bill and as for the remainder,such as EU freedom of movement rights:
“the government,in the exercise of the acknowledged power, prerogative power to negotiate, might well take steps, and might well take steps which area great deal more significant than merely firing the starting gun in the course of those negotiations. It might decide in relation to a particular set of rights that currently exist, it doesn't feel able in the negotiations to advance a position under which they would survive.”
Responding to this,Lord Justice Sales asked:
“… can I just check that I have understood the Crown's submission about the effect on section 2(1) of the 1972 Act if theoretically all that happened was the giving of notice, the expiry of the two-year period and the United Kingdom exits the EU at the end of that two-year period. Am I right in thinking that the effect of that would be to say that there are no longer enforceable EU rights which have effect under section 2(1)?”
Mr Eadie’s candid response was:
“Yes, you are.”
Today the barristers for the claimants and other parties will reply to these remarkable submissions once Jason Coppel QC has made submissions specifically about the People’s Challenge case.
We will post another court report tomorrow.
Court report: day 1
Despite being the biggest courtroom in the Royal Courts of Justice, Court 4 was packed to capacity and beyond yesterday. Impressively, following a suggestion from our legal team,the court staff had arranged for live video links to screens elsewhere in the building. There was also live tweeting from Jolyon Maugham QC and Independent journalist, Siobhan Fenton and there has been some incisive discussion of the parties’ arguments in the NewLaw Journal and FinancialTimes. At the end of the day, a full transcript was published. Besides the many barristers instructed by those already involved in the case, there were QCs with ‘watching briefs’ present for the Scottish and Welsh Governments, suggesting they may want to step in on devolution issues when the case reaches the Supreme Court. So far, only the People’s Challenge has raised these issues in Court.
What follows are some highlights of the first court day and a taster of what’s to come.
Lord Pannick QC opened for the lead claimant, Gina Miller, telling the court that the litigation:
“raises an issue of fundamental constitutional importance concerning the limits of the power of the executive. Can the defendant, on behalf of the government, lawfully use prerogative powers to give a notification under Article 50 of the treaty on European Union of this country's intention to withdraw from the EU?”
He added that he was going to adopt many “valuable points” made in the skeleton arguments from other parties supporting this side of the argument.
Lord Pannick then discussed the nature of Article 50, describing it as a “bullet” that, once fired, would reach its target sooner or later.
Next he covered the Referendum Act 2015 and the fact that the outcome does not bind Parliament:
“What is absent from the 2015 Act is any provision specifying what consequences, if any, should follow from the referendum result. The Act says nothing on that subject. And it is of interest that the Act says nothing on that subject, because when Parliament does wish to specify the consequences that should follow from a referendum, it says so.”
He then discussed he special nature of European law and the citizenship right created, drawing on a number of points made by the detailed written submissions from the People’s Challenge legal team. He explained why many EU rights would be gone forever, once Article 50 is invoked, regardless of the content of the Great Repeal Bill:
“It's not possible for Parliament to re-enact a right to vote in the European Parliament. It is simply inconceivable. There is a statute which confers that right and Parliament simply cannot confer a right to vote for a member of the European Parliament. Inconceivable. That is one example. A second example is once we leave, assume, this is your Lordship's question tome, assume that Working Time Directive, or other provisions are re-enacted, its quite impossible for Parliament to re -enact that my client or anybody else should have a process right, an absolutely crucial process right, to obtain a determination of the Court of Justice, in Luxembourg, as to the meaning, the scope and the meaning of that right. That will go forever. That is not possible. And it is also quite impossible for Parliament, of its own volition, to confer on my client, or anybody else, a right to free movement and all of the other fundamental rights throughout the community, free movement of services, goods, a person's right of establishment. Parliament cannot do that of itself.”
These rights, we went on to explain, were made part of domestic law, by Parliament, under the European Communities Act 1972 and later legislation.
Lord Pannick then identified the long-established legal limits to prerogative powers, most importantly that:
“the principle of parliamentary sovereignty in the sense we are considering, is absolute. The executive cannot,without the consent of Parliament, override or take away domestic law rights which have been granted by Parliament. And the doctrine of parliamentary sovereignty is a legal doctrine. And it was described by Lord Bingham in R (Jackson) v The Attorney General, one of the foxhunting cases, as the bedrock of the constitution.”
“…under the doctrine of parliamentary sovereignty, Parliament is the only body which, under the UK's constitutional requirements, can take or authorise the decision to withdraw and notify under Article 50.”
Lord Pannick was followed by Dominic Chambers, Mr Dos Santos’ QC who took the Court on a legal history tour of the Royal Prerogative, Parliamentary Sovereignty and Referendums, taking in landmarks such as Dicey’s 1915 Introduction to the study of the law of the Constitution which emphasises that:
“Parliament … has, under the English constitution, the right to make or unmake any law whatever and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
That ‘setting aside’, Mr Chambers argued,would unlawfully happen by executive action, were Article 50 triggered by Ministers.
He brought the Court right up to date, though,showing them the House of Lords Constitution Committee Report on Referendums, the Government’s acceptance of their non-binding nature at page 12 of its response and the briefing to Parliament on the EU Referendum Bill 2016 which was highlighted in the People’s Challenge clarification note.
The day ended with the People’s Challenge lead barrister, Helen Mountfield QC opening her case. She told the Court she was instructed by:
“…an Englishman of Bangladeshi origin, an Irishman, two Scotsmen resident in France, a Welshman and a Gibraltarian, whose wife is Spanish, with family resident in Spain.And I make that opening observation not as a start to a poor joke,but because that illustrates the nature of the EU citizenship rights which they enjoy and they seek to enjoy, which include, for example,the right, if one resides abroad within the EU, to be accompanied by third country nationals, exercising derived rights out of the citizen's directive. So they are all beneficiaries of the EU citizenship rights. And they are all concerned to ensure that there is proper democratic authority for and scrutiny of, Britain's future relationship with Europe and they have been funded by over 4,400 people, who have supported them through a crowd funding initiative.”
On Monday, Helen will develop the case further on seven key points.
First, notification to the European Council of a binding decision to leave the EU will remove the directly applicable or effective EU citizenship rights of UK citizens after expiry of the notification period.
Secondly, once such a binding decision to leave the EU has been notified, the status of EU citizenship for UK citizens cannot be preserved or retained by Parliament – the Great Repeal Bill, for instance, cannot replace the EU citizenship rights every UK citizen will have lost.
Thirdly, directly applicable or effective EU citizenship rights have a fundamental constitutional character because they confer wide-ranging directly enforceable rights and remedies on EU citizens, as subjects of the EU legal order (and inform the content of the common law and the interpretation of statutes).
Fourthly, the availability of such individual citizens’ rights in the law of the UK is recognised by the courts because it has been mandated by legislation.
Fifthly, for a Minster of the Crown to take a step, which will make those rights unavailable without prior Parliamentary authority, dispenses with the law or the execution of the law and is contrary to the Bill of Rights 1688.
Sixthly, that step would be contrary to the Acts of Union with Scotland because it alters the public and private law rights of those subject to Scots law which arise from their EU citizenship, without Parliamentary authority.
Last, she will argue that even if all of this were wring and the prerogative powers of the Crown were to extend to removing such rights in theory, for such powers to be used to remove rights which underpin the devolution statutes would be an unlawful exercise of the prerogative, because it would remove limitations on the powers of the devolved legislatures and assemblies to intrude upon the public and private law rights of EU citizens, which limitations underpin the constitutional settlement between the nations of the UK and the understanding of Parliament in passing the devolution legislation.
People's Challenge - Thank you & why we are pushing on past £150,000
We have raised the necessary money for the hearings in the Divisional Court, this is an important milestone. However this fight for Parliamentary democracy is a marathon not a sprint.
Pushing on past the magic £150,000.
We’ve been focussing on this target for quite a while now and, when we started, it seemed like an impossible ambition.
However, over time, we have assembled not only a top-notch legal team, but also thousands of supporters prepared to put their money where our mouth is. We cannot thank you enough for your confidence and generosity.
We are committed to doing the very best job we can for you. We’ve already had our first victory, when the Court agreed to our application to make sure the government’s defence was not kept secret. It subsequently became clear why they were trying to keep it so. Besides sparking public and press debate, the defence has been exposed to coruscating critiques by leading constitutional law academics such as Professors Alison Young and Mark Elliot and fellow Pavlos Eleftheriadis.
But the legal fight is still in its early stages. As you might well have noticed, in the course of the campaign it has become increasingly clear that the matter will go to appeal at the Supreme Court in December to get a definitive, unequivocal decision. The government seems disinclined to back down, and we have grounds for optimism about the outcome for us.
Either way, it seems that the fight will have to go on to make sure that there is no invocation of Article 50 without Parliamentary oversight and authority in the form of an Act of Parliament. The law demands no less.
The will to carry on is not in doubt, and the way is clear, so once again it’s down to the means.
We have to ask you, please, to keep on pledging, so that the Peoples’ Challenge doesn’t founder because the government has more money to spend than we do.
The estimate of the amount necessary for us to go, or to be taken, to the Supreme Court is £75,000. Please help us to make a start on this target while the current funding campaign is still running.
Both the judiciary and the government take notice of the support you’re giving us, and it’s not only the money, it’s the number of people who pledge. The more people who can spare us a quid or two, the clearer it will be that Parliament’s constitutional role matters to ordinary UK Citizens, especially at this critical time, and the more the government is on the back foot. Please do what you can to make them all sit up and take notice.
Thank you once again.
Chris, Fergal, Grahame, Paul, Rob & Tahmid.
The Article 50 hearing – Q and A
On 13th, 17th and the morning of 18th October 2016 the Divisional Court will hear the judicial review challenge to the Government’s plans to trigger Article 50 to take the UK out of the EU. The target of the challenge is the way the Government plans to do this – by using the Royal Prerogative instead of seeking prior authorisation from Parliament.
Thanks to almost 4000 people supporting the People’s Challenge via CrowdJustice, the ‘interested parties’ represented at that hearing will include us - a range of ordinary British Citizens who have instructed our legal team to submit that prerogative powers cannot be used in this way because that would mean millions of our fellow citizens being stripped of rights that Parliament has granted. If these rights are to be taken away, it must be our Parliament that takes that step.
The detailed update below has been prepared by our legal team. It answers many of the questions people have put to us, summarises what the Government says in response to our arguments, explains how those arguments will be presented at the hearing and sets out what else is likely to happen, including after the hearing.
Thank you once again for your fantastic support.
Grahame, Rob, Paul, Tahmid, Chris and Fergal
- What is a judicial review and why is one needed here?
Judicial review is the special legal process enabling the courts to make sure state power is being used lawfully.
This particular case has come about because of a fundamental disagreement between the Government and many members of the public - including MPs - about Parliament’s constitutional role following the EU Referendum result. In an emergency debate yesterday, the Government resisted MPs’ calls for more Parliamentary involvement and said the matter was in the hands of the Divisional Court.
- What is the Divisional Court?
A Divisional Court is constituted from a small group of High Court judges. Normally judicial review cases are heard by a single judge, but on this occasion three very senior judges will hear the case because of its importance. They will be led by the Lord Chief Justice, The Right Honourable The Lord Thomas.
- Will the hearing be public and can people come along?
Yes. It will be a public hearing starting at 9.30 AM and running until about 4.15 PM each day with a break for lunch around 1.00 PM. It is likely to be held in Court 1 at the Royal Courts of Justice on the Strand. London (to be confirmed on the Daily Cause List). The hearing is likely to finish on the morning of 18th October 2016.
- Will there be a live video feed?
No. There is a public seating area in the Court. Possibly video screens will be out up outside in the Royal Courts of Justice corridor or hall, but not externally broadcast.
The People’s Challenge group will tweet updates during the hearing and produce a summary of what’s happened at the end of each day, though.
- Will the Court hear live evidence from individuals?
No, just legal argument from barristers. Evidence has been submitted by the claimants - Ms Miller and Mr Dos Santos - and by some of the interested parties – including all members of the People’s Challenge group - about their reasons for being involved and concerns about the Government’s intentions. The Government has disputed very little of what has been said, but this is a case that turns on a legal question, not a dispute about facts.
The claimants’ barristers – Lord Pannick QC and Dominic Chambers QC - will be heard first, probably for most of the 13th. There are two sets of interested parties (groups of people that the Court has already accepted are directly affected and so entitled to be heard). Their barristers – including the People’s Challenge QC, Helen Mountfield - will likely be heard next, followed by the barristers acting for an expats’ group.
The Government will then reply, probably splitting its case over most of 17th October. Their case will be argued by the Attorney General, Jeremy Wright QC, though other barristers acting for the Government may also make submissions.
The Court will then hear replies from the claimants’ barristers, and possibly others’, on the 18th.
All barristers’ time in Court will be short, especially those instructed by the interested parties and interveners. But besides what is said at the hearing the judges will be considering the parties detailed written submissions and around 10 double-sided volumes of material, including statute law (Acts of Parliament), cases that set a legal precedent, parliamentary and other materials.
- Will the Court decide the case after the end of the hearing?
Yes. It is very likely to ‘reserve’ its judgment, think about and discuss the legal issues and then announce what it has decided at a short hearing in a matter of weeks. The announced decision will be underpinned by a detailed judgment.
- Will that be the end of the case?
Almost certainly not. Whoever wins, the UK’s Supreme Court is likely to hear a ‘leapfrog appeal’ (one that bypasses the Court of Appeal) in a few weeks, probably in early December. If so, it will make the final decision.
- Will the People’s Challenge be involved at the Supreme Court stage, if the case is argued there?
There will need to be further crowdfunding, but subject to the case proceeding before the Supreme Court, yes. It is very important that the Supreme Court hears why stripping away British Citizen’s rights without Parliamentary authority is unlawful.
- What about the argument that Parliament, then the public, authorised Brexit through the EU Referendum Act 2015 and the public vote?
The Government has much to say about the EU Referendum in its defence, but in the end this is not the cornerstone of its case. The outcome of the EU Referendum is very important and certainly demands respect. The People’s Challenge group’s position is that, like most referendums in the UK, it was ‘advisory’. The 2015 EU Referendum Act did not say what should happen next, nor who should decide that. In fact, Parliamentarians were briefed during the EU Referendum Bill debate that the Bill contained no:
"requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented"
"this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions".
The Government’s policy is clear enough. But that cannot override parliamentary sovereignty.
The 2015 briefing echoed what Parliament was told when the very similar EEC Referendum Bill was debated in March 1975:
"Parliament... can never divest itself of its sovereignty. The referendum itself cannot be held without parliamentary approval of the necessary legislation. Nor, if the decision is to come out of the Community, could that decision be made effective without further legislation".
- What are the main legal issues then?
This is absolutely not a case about ‘stopping Brexit’, challenging the outcome of the EU Referendum or the way the campaigns were run.
Instead, it concerns fundamental constitutional questions: after the EU Referendum, who is legally entitled to decide when, how, whether and if so on what terms the UK will leave the EU?
The Government says these are decisions for it alone and it can trigger Article 50 to give effect to its decisions using the Royal Prerogative – vestigial powers derived from the rights and privileges of the Crown. It says it needs no Parliamentary authority to do so. And in yesterday’s debate it went further, arguing parliamentary oversight would be undesirable ‘micromanagement’.
Like the claimants, the People’s Challenge group’s lawyers will argue that an Act of Parliament is absolutely necessary in law before Article 50 TEU can be triggered.
They will develop this by submitting to the Court, amongst other arguments, that any use of executive prerogative power to trigger Article 50: (1) would be inconsistent with a number of the UK’s ‘constitutional statutes’ (such as the Bill of Rights, 1689, the devolution statutes and the European Communities Act 1972); (2) would be an unlawful removal of British Citizens’ fundamental citizenship rights; and (3) would, in any event, be abusive if it were exercised to trigger the UK’s withdrawal from the EU because it would amount to the executive de-facto legislating and thus impinging upon the principles of Parliamentary Sovereignty and the Separation of Powers.
The Government’s counter argument is that: (1) entering into and withdrawing from treaties is a matter for the executive under the prerogative;, and (2) there is nothing special about either our relationship with the EU, or the rights British Citizens have as a result of the UK’s EU membership, which would prevent the Government from deciding to trigger Article 50 without Parliamentary authority.
Last, the Government argues that the dispute is not suitable for consideration by a court, because the matter is a “polycentric” one of “highest policy” which is only suitable for the claimed “expertise of Ministers” to determine. This argument has been subject to staunch criticism, being described by one constitutional academic expert as “absurd” and “quite bewildering”.
- Won’t Parliament have an opportunity to oversee and control the Brexit process when it considers the ‘Great Repeal Bill’?
No. On the Government’s case, Parliament’s main role in relation to Brexit will be enacting tidying up legislation to remove the European Communities Act 1972 (the Act that brought EU law into direct force in the UK) and affirming the result of any future negotiations. This is what has been referred to as the ‘Great Repeal Bill’.
Of course, by then, Brexit will be well underway because invoking Article 50 starts a two year clock ticking and, absent all member states agreeing to more time, once the two years are up, EU membership will automatically be ended. That will happen regardless of individuals’ personal circumstances. So, for example, a student part way through a course in another EU country, would lose the right to complete it unless some concession had been negotiated and, similarly, someone who had retired in another EU country relaying on EU rights would need to seek permission to remain there.
The details of the Great Repeal Bill are unclear, but on the face of things this is irrelevant to the current dispute. Such a Bill will not be proposed and enacted until long after Article 50 is triggered, and will not come into force until the date on which the UK leaves the EU. In any event, the proposal of such a Bill exemplifies the legal argument made on your behalf – if Parliament were to refuse to enact Ms May’s Bill, then, on account of mere Ministerial action triggering Article 50, the UK would nevertheless still be on an unstoppable course for withdrawal from the EU due to the effects of Article 50 (which is arguably impossible to reverse without the unanimous consent of 27 other EU Member States). This would be inconsistent with a wide-range of statutes which depend upon and assume EU membership. It would mean that the citizenship and fundamental rights which flow from EU membership, and were brought into force in UK law via Acts of Parliament, would be lost, despite Parliament never agreeing to that.
In reality, once Article 50 is triggered, Parliament will have very little meaningful role.
- What happens if the challenge ultimately succeeds?
Judicial review will be ‘granted’ by the Court and it will make a declaration that there must be an Act of Parliament before the UK leaves the EU, authorising that step. That Act would need to be based on clear proposals, and debated and modified as needed, like all primary legislation.
- If the challenge fails, can the Supreme Court’s decision be appealed to the Court of Justice of the European Union?
No. This is a case about the UK’s own constitutional requirements. The only real possibility of the Court of Justice becoming involved would be if the UK Courts concluded that they required a definitive ruling on the question of whether an Article 50 notification can be withdrawn.
People's Challenge nearing £150,000 target!
The Peoples' Challenge is nearing its stretch target of £150,000, also approaching are the court dates. The donations made on crowdjustice have enabled The Peoples' Challenge to bring its case against the government, in particular with the massive contributions made over this last week-end.
In 3 days time the court case will begin, the arguments are public.
As many of you may already know, the Government's arguments have been scrutinised by a number of people, laymen and experts alike. Even its supporters do not rate them very highly.
We feel more confident in our case than ever, and we intend, as we always have, to prosecute it to the very end if necessary.
We thank you once again for your support and also ask you to make the final push towards these hearings in the High Court; please support and spread the word about The People's Challenge.
Robert Pigney is one of the Interested Parties bringing the People’s Challenge to the Government’s attempt to leave the EU using Royal Prerogative powers.
Evidence and submissions in; trial in sight
This short update is to bring people up to date with this week’s developments. Our legal team is also preparing a detailed Q and A about what exactly will happen during the trial which we will post very soon.
So far, we have filed detailed legal arguments about our case along with our own evidence about why invoking Article 50 without full Parliamentary scrutiny and an Act of Parliament authorising that step is unacceptable.
Since then, the Government and our lawyers have filed further written submissions which the Court will read ahead of next week’s Divisional Court trial. Our lawyers are now hard at work honing those arguments so they can be presented as effectively as possible in the time slot they will get.
Please do consider donating again now so we can reach our stretch target and pay them for their work. And, whether or not you can afford to make a further contribution, please do use social media and e mail, the ‘phone and post to encourage others to help out at this critical time.
The Government was asked by our lawyers whether it was willing to make its further submissions (known as a ‘skeleton argument’) public. We’re very pleased to report it did voluntarily so late yesterday afternoon. That document, which develops the ‘detailed grounds of resistance’ made public as a result of our application to the Court, is also available here.
In response, our legal team has filed a short clarification note emphasising that there is no common ground in the case on the central question: whether a constitutionally lawful decision has been made to leave the EU.
They have also drawn the Court’s attention to the fact that Parliamentarians were briefed during the EU Referendum Bill debate that the Bill contained no
"requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented"
"this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions".
The 2015 briefing echoed what Parliament was told when the very similar EEC Referendum Bill was debated in March 1975:
"Parliament... can never divest itself of its sovereignty. The referendum itself cannot be held without parliamentary approval of the necessary legislation. Nor, if the decision is to come out of the Community, could that decision be made effective without further legislation".
That is exactly our position. And Mrs Thatcher, then Leader of the Opposition, agreed in the debate that this was legally right.
The trial opens in the Royal Courts of Justice next Thursday, 13th October. The hearing continues on the 17th and concludes on the 18th.
The constitution of the Court has yet to be confirmed, but it is being led by The Lord Chief Justice, Lord Thomas of Cwmgiedd. Judgment is likely to be forthcoming in two to three weeks, because the Courts anticipated there being a leapfrog appeal to the Supreme Court and a hearing of that appeal this year.
Thank you again for your help so far. You – our supporters - are making the People’s Challenge possible.
Grahame, Rob, Paul, Tahmid, Chris and Fergal
£100,000 Milestone for the People’s Challenge.
The People’s Challenge has recently exceeded £100,000 in donations, with great progress being made in the last few days. These donations have enabled us to forge onward with our legal challenge to the Govt. With both our and the Govt’s arguments being made public, all our supporters can see that our case appears strong.
We have some, if not all, of the UK’s best public law and human rights experts in our legal team and we are confident in the case they are putting forward on our and your behalf.
Chris Formaggia said:
“We have an amazing legal team and each of my co-interested parties has a valuable life experience that adds to the case but I take my hat off to all the heroes and heroines who have and continue to support our case with their hard earned cash….your faith in our case is a wonderful thing”.
When the courts deliver their verdict and justice is done it will have been thanks to our backers without whom this would all have been nigh on impossible.
Tahmid Chowdhury said:
“In recent years the civil justice system has become increasingly difficult to access for ordinary citizens. Thanks to the generosity of all of those who have donated on and/or shared our Crowd Justice campaign we are able to ensure that our terrific legal team gets the voices of ordinary people heard in this groundbreaking case.”
People's Challenge group win right to publish secret Government Defence in Brexit case
|We are delighted to announce we have won the right to publish the Government’s complete legal defence and an unredacted version of our own submissions ahead of the Court hearing in October.|
As discussed in our last update, the Government had strongly objected to the defence being published arguing that a case management order made in July meant all Court papers had to remain confidential.
However, in an Order made last night in response to an urgent application by the group, Mr Justice Cranston ruled that:
"... the parties are not prohibited from publishing the Defendant's or their own Detailed Grounds... against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under the Rules"
The People's Challenge group has been crowdfunding to raise money to actively participate in the Article 50 litigation begun in July by Dier Dos Santos and Gina Miller so it can ensure a range of British Citizens' interests are at the forefront of the Court's mind. Last week, the group's legal team made detailed legal submissions to the Court arguing that Article 50 cannot be invoked using prerogative powers and that only an Act of Parliament, preceded by proper parliamentary scrutiny, will be constitutionally sufficient.
John Halford of Bindmans LLP represents the group. He commented today:
"The Court's Order allows a floodlight to be shone on the government's secret reasons for believing it alone can bring about Brexit without any meaningful parliamentary scrutiny. Those who were unsettled by the Government's insistence on its defence being kept secret, will now be surprised by the contents, including submissions that Brexit has nothing constitutionally to do with the Scottish and Northern Ireland devolved governments, that Parliament 'clearly understood' it was surrendering any role it might have in Brexit by passing the EU Referendum Act, that it has no control over making and withdrawal from treaties and that individuals can have fundamental rights conferred by Acts of Parliament stripped away if and when the executive withdraws from the treaties on which they are based. These arguments will be tested in Court next month, but now they can be debated by the public too."
Members of the People's Challenge group also welcomed the ruling.
Robert Pigney commented:
"After much secrecy the government have been made to show their legal arguments by the High Court - a big a step for the public to get closer to the truth of the government's position and intentions."
Tahmid Chowdhury said:
"In initially withholding disclosure of their arguments, the Government made a mockery of the transparency needed in a thriving democracy. They clearly now know they had no leg to stand on, and one can only hope the same thing happens in this case that should never have needed to come to court."
Grahame Pigney said:
"It is good to see that the court has injected common sense and natural justice into the case. Proof, if any is needed, that that ordinary people working together, well organised and supported are capable of challenging and winning anything."
Chris Formaggia added:
"It is hugely pleasing to learn that the court finds for the disclosure to the public of the arguments for and against the use of the archaic Royal Prerogative in a case that is of such enormous public interest."
Extending our fundraising campaign
This update explains our decision to extend our fundraising campaign until 17th October - the last day of the Divisional Court trial in the Article 50 case.
All of us have been heartened by the support shown by those who have backed the People’s Challenge so far - particularly those who have made donations made towards our own lawyers’ costs in preparing our detailed written arguments and evidence and to protect us against having to pay government legal costs personally (if any are ordered against us).
Our lawyers’ written arguments can be viewed here in a redacted form (i.e. with certain text blanked out).
We want to publish a complete version in the next few days along with the government’s written defence. But, as the Guardian has reported, we have had to apply to the Court to secure the right to do so. We will also be publishing our own witness evidence very soon.
Right now our barristers – QCs Helen Mountfield and Gerry Facenna and juniors Tim Johnson and Jack Williams – and solicitor - John Halford - are hard at work refining our arguments to take into account what the Government and others involved in the case are saying and prepare for the Court hearing on 13 and 17 October.
It is clear the government is taking the litigation very seriously indeed - it has just appointed the Attorney General himself to lead its legal team.
But to ensure our own legal team are paid for their work in presenting our arguments as powerfully as possible in Court we need to raise more funds. We do not want to lose any members of the team, nor ask people to work for nothing. None of our legal team will do well from the case, though – all are being paid at rates which are a fraction of their normal ones, and less than those charged by the government’s own lawyers.
Thank you again for your support so far. We hope that extending the fundraising deadline and increasing media attention on the case will mean we will meet our fundraising target by the hearing.
If you are able to contribute a little more yourself at this critical time - or encourage friends, family and colleagues to do so - that would be fantastic.
Grahame, Rob, Paul, Tahmid, Chris and Fergal
Submissions to the court - our arguments and witness statements.
Once again thank you for your support.
This week has been taken up with finalising our submissions to the court.
These include our skeleton argument and the witness statements from the 6 members of the People's Challenge.
At the moment there is some debate over what we are permitted to disclose about our argument.
As soon as we have resolved this we will provide an update with as much information as we can provide.
In the meanwhile anything that you can do to spread the word and help us get closer to our £150,000 target, Chris, Paul, Tahmid, Fergal, Rob and myself will be very grateful.
Update on Article 50 People's Challenge No. 5: The real reasons for Theresa May’s criticism of the Article 50 People’s Challenge
Responding to Bernard Jenkin MP during Wednesday’s (7th Sept) Prime Minister’s Questions, Mrs May told the House that the Government had a “clear” position on invoking Article 50, adding that “this is a prerogative power and one that can be exercised by the Government”. The following thinly-veiled criticism was then levelled at those involved in the crowd-funded People’s Challenge and the other litigation of which it forms a part:
“No one should be in any doubt that those who are trying to prolong the process by their legal references in relation to Parliament are not those who want to see us successfully leave the European Union; they are those who want to try to stop us leaving.”
Such statements make good soundbites. But the Government’s superficially unequivocal and plain-speaking position needs a little unpacking. Once that is done, what becomes clear is that it is neither straightforward nor correct. Exposing this is one of the reasons why the People’s Challenge is so important.
The first point to be made about the Prime Minister’s answer is that it infers that ministers have a constitutional tool box, with a special compartment for the Prerogative, neatly labelled “For use in the event of Brexit”.
Ironically, the proponent of the EU Referendum, David Cameron, strongly advocated for restrictions on use of the Prerogative on the premise that “restoring trust in politics means restoring trust in Parliament”. So far, no-one in Government has unearthed any statement from Mr Cameron suggesting that the Brexit process was an exceptional matter which Parliament could not be trusted to oversee.
And his successor is quite wrong constitutionally. The Prerogative is a legal tool for the exercise of the vestigial powers of the monarch by the government of the day. It can only be used legally when Parliament has not already decided it is too blunt for use by a single minister in a particular context, which is in fact what has happened repeatedly over the last four decades in relation to the UK’s EU membership. That has led not only to internationally-binding treaties with other states, but to Parliament granting of enhanced citizenship rights to millions of British Citizens living here in the UK and abroad. These rights are not only written into the UK statute book; they are woven into the constitutional settlement within the UK, particularly with the people of Northern Ireland and Scotland and with those living in the UK’s territories overseas.
These compelling arguments cannot be brushed aside. They will be put to the court by the People’s Challenge legal team – QCs Helen Mountfield and Gerry Facenna, barristers Tim Johnson and Jack Williams, and their solicitor, myself.
How will that be done?
In short, the People’s Challenge group are now fully recognised, and on the court record, as 'interested parties’ in the test case litigation brought by Deir Dos Santos and Gina Miller in July (the cases were taken separately but have been joined together by the court). They too challenge the government’s plan to exit the EU by invoking Article 50 without Parliamentary authorisation in the form of an Act of Parliament. The People’s Challenge have filed an ‘Acknowledgement of Service’ at court outlining our grounds for arguing that the Government is wrong on the basis of separate, but complementary arguments.
Right now, those arguments are being developed in a detailed written ‘skeleton argument’ which we will publish so that anyone interested can see, comment on and discuss it. Evidence from those in the People’s Challenge group will also be filed at court. Then, if sufficient funds are raised towards the CrowdJustice ‘stretch target’, the legal team will present the arguments at the hearing in October.
The Prime Minister suggests that all of this is being done simply to “prolong the process” of Brexit. This is too is wrong at a number of levels.
First, at the preliminary hearing of the litigation in July Mrs May’s barrister confirmed that she will not be invoking Article 50 this year. Everyone involved in the litigation agreed that it needs to be dealt with speedily so the Prime Minster will have the guidance of not only a special ‘Divisional Court’ of the High Court but also the Supreme Court, if necessary, before 1 January 2017. Diaries have been cleared and an expedited timetable has been set. None of this is consistent with anyone “trying to prolong” the process. If stalling had been the intention, legal action would have been better targeted at the invocation of Article 50 itself, not the plan to use it.
More importantly still, the remedy being sought from the courts cannot ‘block’ Brexit. All that is sought from the courts is a declaration which confirms that decision-making on Brexit falls to our democratically-elected Parliament. The value of such confirmation would be immeasurable because it would then be for Parliament to decide what becomes of individuals’ rights under a Brexit process, what Brexit means or - if Parliament sees fit – if there may be an alternative. None of this would be lawyer-driven, and it certainly should not be. But it would be democratic.
The last thing that calls for a response is the Prime Minister’s opening salvo – that the Government’s position is “clear”.
Again, this is not really so. The British public – whether permitted to vote in the EU Referendum, or disenfranchised through age or long residence abroad – were never told that there would be no Parliamentary oversight of the stripping away of their individual rights following Brexit, neither before the Referendum result was announced. Had they been, many may have decided not to vote leave, especially had they known there was no Government contingency planning for the Brexit process. Then, shortly after the Referendum result was published, Parliamentary involvement was promised. But now there is not even to be a Parliamentary vote, never mind proper legislative scrutiny. Startlingly, whether there should be one or not is said to be a matter for the Prime Minister to decide. And so far, the Government’s legal defence – set out in letters and its ‘Detailed Grounds of Resistance’ - has been made available only to the parties to the litigation; hardly a transparent, public position.
All of this begs two questions Mrs May has yet to answer, both of which are rather trickier than that put by Mr Jenkin.
First, if the Government really is confident in its position on the law, why is it busy criticising those who have brought the issue to court when doing so will speedily put the lawfulness of its actions beyond doubt?
Second, and even importantly, if the Government really is confident that its plans for Brexit are sound, particularly in their protection of British Citizen’s rights, why is it so anxious to avoid Parliamentary scrutiny?
In truth, the point of the People’s Challenge is to bring about the legal certainty, and in turn the Parliamentary scrutiny, that something as serious as the stripping away of citizenship rights from 65 million people so obviously demands. The case is as serious as they come. The criticism and attempts to trivialise it are unworthy.
Update on Article 50 People's Challenge No. 4: £50,000 target achieved, thank you and the next stage in the campaign
Once again thank you to everybody who has pledged money to support this challenge and get us through our first target of £50,000.
When the initial work behind the People’s Challenge was started by Jolyon Maugham back at the end of June and we started to put the group of concerned citizens together we knew the fundraising was going to be hard work and rely on the help and generosity of ordinary people.
We made a conscious choice to follow the strategy of establishing the legal premise, putting a specialist legal team in place which would be able to make the arguments, and then asking people to pledge money to support the People’s Challenge to the government.
We also needed to bring together a representative group of concerned citizens; UK citizens in the UK, UK citizens resident overseas and people from overseas territories like Gibraltar.
Even though this would mean that we were going to be fund raising during the holiday period and the Olympics we knew we could not expect people to back us unless we had done the groundwork and established a proper basis for the challenge we were making.
For this reason we set the initial target at £50,000, a sum that would allow further preparatory work to be done and make the written submission, including depositions from our group of concerned citizens, as well as testing the support for this People’s Challenge.
We knew that if we achieved this initial target it would give us and our supporters the confidence that the full target of £150,000 is possible.
What we had not allowed for was the stunning success of Team GB in Rio, which succeeded in keeping just about all other news out of the media.
Thanks to the generosity and support of all of you we have raised the initial £50,000 in the first 3 weeks. This will allow John Halford at Bindmans to start the next stage of preparing our case, the written submissions.
We have extended the campaign period to 3rd October. With the holiday period over and Brexit now back in the headlines, we are certain that we will achieve our £150,000 overall target.
A recent press release produced some surprising results. An article sent out by Richard Wheeler of the Press Association was picked up by the Express as being a direct appeal to Brexiteers to support our challenge. But reading the comments at the bottom of the Express article, it seems very likely that at least some of those who campaigned so noisily on the platform of “Take Back Control” don’t actually want that control to reside with the UK’s Parliament.
Thank you for your support.
We hit our first target!
Frequently Asked Questions
- How is what you are doing different to the Gina Miller challenge represented by Mischcon de Reya?
The case being brought by Gina Miller is challenging whether Royal Prerogative can override or undo Acts of Parliament.
Unlike the People’s Challenge, Gina Miller’s challenge does not say who else is party to her challenge or who is funding it.
In addition to the principle of Parliamentary Sovereignty our People’s Challenge is very clearly focused on the importance of UK Citizen’s individual rights, in this case those rights granted by the UK’s Parliament to UK Citizens in relation to the UK’s membership of the EU.
- What about the Fair Deal for Expats challenge?
Fair Deal for Expats say that only they have been given permission to represent the interests of British citizens living or working in the EU at the hearing in October. That isn’t correct though, as the individuals named in the People’s Challenge includes two UK expatriates living /working in the EU.
They haven’t disclosed the identities of the individuals taking their challenge to court, nor made a commitment to openness about their arguments or funding. You have to pay a subscription, between 30€ and 50€, to get information on what they are doing.
This is unlike our People’s Challenge which is representing the interests of ALL UK citizens and is committed to openness about what it is doing.
- Where do the two challenges in Northern Ireland fit with what the People’s Challenge is doing?
These two challenges are being made on the basis of the interaction of Acts of Parliament involving the UK’s membership of the EU and the Peace Process/Good Friday Agreement. It was the UK Sovereign Parliament that set these Acts in place and it is for the UK’s Sovereign Parliament to decide if, when, and how these Acts are to be modified or set aside.
- What about the #BrexitJustice campaign, isn’t it challenging the Government on Article 50?
Although the #BrexitJustice fundraising campaign did include challenging the Government on who can trigger Article 50 as part of its original pitch, #BrexitJustice is now not pursuing an Article 50 challenge and is instead concentrating on suing the perpetrators of the Leave campaign lies.
The £145,000 #BrexitJustice has raised is being used to pursue the prosecution of the “Leave liars”. Important as this is, it is a very different legal action and according #BrexitJustice could take several years.
Even if successful it would not prevent Theresa May and her anointed government from usurping the UK’s Sovereign Parliament by using Royal Prerogative to take the UK out of the EU.
- Who are the members of the People’s Challenge group?
Grahame (me) and Rob (my son) Pigney, both UK citizens living in France, Paul Cartwright, a Gibraltarian national, Christopher Formaggia, who lives in Wales, Tahmid Chowdhury, a London student and Fergal McFerran who lives in Northern Ireland.
- How are you funding the People’s Challenge?
We are funding the People’s Challenge through this Crowd Justice crowdfunding campaign.
Reaching £50,000 will enable our legal team to make the written submissions on behalf of all 65 million UK citizens.
But to make sure that we can be represented at the hearing(s) in October and that the concerns of ordinary UK citizens are argued in front of the judges, we need to push through that £50,000 initial target to our ultimate target of £150,000.
- Who is representing the People’s Challenge?
Our barristers are all public and constitutional law specialists and, just as importantly, are fully committed to ensuring ordinary members of the public have a say in this challenge. They are Helen Mountfield QC, Gerry Facenna QC, Tim Johnston and Jack Williams.
They are working for us at rates lower than those the Government pays its own lawyers, but a huge amount of work is needed.
Update on Article 50 People’s Challenge No. 2: THank you, news and a request
First of all thank you to everybody who has pledged money to support this challenge.
The first piece of news is that another concerned citizen has joined the group making this People’s Challenge to the Government over the use of the Royal Prerogative to trigger Article 50.
This time it is somebody from Northern Ireland: Fergal McFerran who is a graduate of Queens University Belfast and President of the National Union of Students – Union of Students in Ireland.
The other news is that Michelle Clifford, Brexit correspondent at Sky News, came to France to interview Rob and me. We expect the interview to appear on Tuesday (16th) evening and there will be articles appearing on the Sky News website and their social media accounts.
Given that it is the holiday season and the media headlines are being grabbed by the Olympics, the campaign has made an excellent start towards the initial target of £50,000.
Reaching £50,000 will enable our legal team to make the written submissions on your behalf.
But to make sure that we can be represented at the hearing(s) in October and that the concerns of ordinary UK citizens are argued in front of the judges, we need to push through that £50,000 initial target to our ultimate target of £150,000.
This is where you can be enormously helpful in spreading the word about the campaign.
Once again, thank you very much for your help and support so far.
Please help Rob, Paul, Chris, Tahmid, Fergal and myself to make sure that the concerns of ordinary UK citizens are heard at the hearings in October by sharing the information about the campaign with other people, whether via email or via the social media.
Our Crowd Justice Campaign page is People's Challenge to the Government on Art. 50
We regularly post on the SY2E Public Facebook page
There are regular blog posts on the SY2E web site
Update on Article 50 People’s Challenge No. 1: Getting Started – John Halford, Bindmans LLP
This is the first of a number of updates to keep you – a supporter of the Crowdjustice funded Article 50 People’s Challenge - up-to-date with what is happening on the case and how the money that is being fund raised through CrowdJustice will be used if the target is reached. There will also be further updates from the “interested parties” bringing the challenge, Grahame and Rob Pigney, Paul Cartwright, Christopher Formaggia and Tahmid Chowdhury. Jolyon Maugham QC, who first had the idea for a challenge by and for ordinary citizens and raised the money to bring the legal team together, will also provide updates from time to time.
The most important thing to say at this stage is ‘thank you’. This challenge cannot happen without support from you and others like you. Funds need to be raised both to protect the interested parties from the Government’s legal costs that they could be ordered to pay, and also to pay members of the legal team for some of their time (at rates lower than the Government’s lawyers, I stress). This is not the kind of case that can be presented properly by fitting in the time needed around paid work.
What has happened so far?
As discussed yesterday in a published blog, the Article 50 litigation began with a judicial review claim issued by hairdresser Dier Dos Santos. His claim was listed for a ‘directions hearing’ (at which the court makes arrangements to progress complex litigation) and my firm, Bindmans, was invited to attend because it had already sent a letter to the government for my clients asking whether it intended to use the Royal Prerogative to activate Article 50. The Prerogative is the set of residual mediaeval powers which the Monarch delegates to ministers to exercise on her behalf. They are generally used for extraordinary decision-making, or where there is no clear Parliamentary authority for the use of power, such as entering into international treaties and granting pardons for criminal offences.
At the hearing, the QC leading our legal team, Helen Mountfield, argued that Bindmans clients ought to have a say as the litigation moved forward.
The court also heard from Lord Pannick QC, who represents Gina Miller. As she was about to issue a claim and could face the risk of paying the government’s costs in defending its plans to use the Prerogative, hers was made the lead case. But directions were also made in the Order to allow interested parties to participate.
Grahame, Rob, Paul, Christopher and Tahmid then instructed me jointly to participate in this way. All have separately campaigned about the benefits of EU citizenship rights and, given the outcome of the Referendum, feel very strongly that those rights should not be taken away by the Prime Minister acting alone. They say only an Act of Parliament will do. Their arguments so far are set out in the Article 50 letter and Summary Grounds document.
Meanwhile, Ms Miller has issued her claim, so the ball is now in the Government’s court. Its lawyers must produce ‘Detailed Grounds of Resistance’ – a written defence to Ms Miller’s claim - by 2 September 2016. Ms Miller gets the opportunity to respond to that in a “skeleton argument” to be filed by 14 September.
Provided enough CrowdJustice funds have been raised by then, the legal team then have an opportunity to put in detailed written arguments on behalf of Grahame, Rob, Paul, Christopher and Tahmid (and anyone else who has joined the group by that point - we are in discussion with others in Northern Ireland and Scotland).
This will be a critical stage in the proceedings - the first opportunity to make a powerful response to the Government’s defence of its position. There will need to be a significant amount of legal research and careful drafting to make sure the best use is made of it.
Further written submissions will be made and then the court will hear the case on 13 and 17 October. It has been listed to fit in with the commitments of the most senior judge outside of the Supreme Court, John Thomas who is the Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. He will hear it in a specially-convened “Divisional Court” most likely with two other judges. Generally cases in the High Court are heard by a single judge alone.
It is very unlikely that the case will be concluded in this way, however. Even at the preliminary hearing, the judges indicated that they thought it should proceed to the Supreme Court on a fast-track basis, and officials were sent away to check the Supreme Court justices diaries for December.
The stakes are high. As Grahame has said, each and every one of the U.K.’s 65 million nationals are directly affected by this case, which is one of the reasons why a range of people, not just one or two, is being allowed to put arguments to the courts.
Thank you again for your support in making that possible. Although the fundraising campaign is gaining momentum, the first few days are critical and so please do share information about it with everyone you are in contact with directly and through social media. Grahame, Rob, Paul, Christopher and Tahmid are counting on your support to enable them to speak up for you.
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