The People's Challenge – Thank you and a brief moment to draw breath.
We have achieved very nearly all we aimed for during The Second People’s Challenge. This has only been possible because of your support. Thank you for the time, effort and money you have given us.
We collectively must not forget just what we have achieved together and how it all works towards our being able to protect people’s EU citizenship rights and the Sovereignty of the UK&rsquo...Read More >>
The Second People’s Challenge: helping Parliament take control on Article 50
The People's Challenge has argued before the High Court and the Supreme Court that the Government needs statutory authorisation from Parliament to trigger Article 50.
Our position has been vindicated in both courts. Parliament must authorise leaving the EU. Only Parliament can take away fundamental citizenship rights and this needs an Act of Parliament. The cornerstone of our constitution– Parliamentary Sovereignty – has not crumbled.
But will this make a real difference to the rights and freedoms of 65 million UK citizens? Will Parliament squander the opportunity it now has to ‘take back control’ by passing a Bill that simply hands the Prime Minister all of the power she wrongly believed she had under the Royal Prerogative? Could ordinary UK citizens’ rights then be thrown or negotiated away? The vote in the Lords and Commons on the withdrawal treaty promised by Mrs May will have limited value if the only alternative is withdrawal without an agreement.
Now is the critical time to follow through on the Supreme Court victory. Our MPs now need all our support against bullying and populist rhetoric, so that they can do their sworn duty to act in the best interests of the country, with special reference to their constituents, and be fitting successors to the Parliament of 1688.
Providing that support, based on our existing legal team’s expertise and that of other leading lawyers, will be the Second People’s Challenge – to help make Parliament make a difference on Article 50.
The plan is to do that by:
- urgently seeking authoritative legal advice on how Parliament can maximise its control over the Article 50 notification process as part of any authorising Act, including the possibility of a ‘conditional notification’ in a form that would make parliamentary approval of proposed terms of withdrawal meaningful and, if it would be useful to them, sharing this with key MPs and peers;
- with our legal team, producing a plain English guide for all MPs and peers to the fundamental citizenship rights that are imperiled by the Article 50 process and what may be done to preserve them;
- distributing the guide to MPs and key peers, publish it and explain how you can raise your concerns directly with them (constituents’approaches will maximise the prospects of MPs engaging with the guide);
- ensuring members of the legal team can meet with key MPs and peers who want to take up the issues covered in the legal advice and guide in parliamentary debates; and
- exploring and seeking legal advice on how fundamental citizenship rights can be protected by law after Article 50 notification.
We will want to work with other like minded-campaigners and groups, sharing our legal advice and ideas with them and the public whenever practical. This is not about ‘blocking Brexit’; it is about removing some of the blocks on MPs discharging their constitutional functions and empowering them further.
To turn this plan into urgent action, the People’s Challenge needs your support again. The funds raised in our first two campaigns and the limited costs recovered from the Government will all be used up by the work done so far.
We have set an initial target of £30,000 to cover the costs of the most urgent work on the Article 50 notification advice, our legal team’s time producing the guide, publishing and disseminating it, immediate work on the Supreme Court’s judgment itself and associated expenses. We hope you will help us reach it soon – and help make Parliament make a difference.
Background to the Second People’s Challenge
Before taking their seats, all Members of the House of Commons swear an oath to act in the best interests of the country, with special reference to their constituents. Similarly, Members of the House of Lords must act in the public interest.
What could be more relevant to every constituent in the UK, more in the public interest, than rights granted by Parliament? This affects all UK citizens, wherever they live.
This is how we see the current situation:
We can only speculate on what Maidenhead’s voters (majority for Remain) think of their MP Theresa May. But we could assume that Mrs May is acting in what she believes to be the best interests of the country. This would confirm her oath and certainly shows the way to all MPs to do likewise;
MPs have their sworn duty, and we must support them in it, making it clear that the views of 37% of the electorate do not constitute an overwhelming mandate for Brexit on whatever terms the Government agrees with other EU states.
We want to help demonstrate that the other 63% of the British electorate want MPs to support them and validate their wishes. Above all, we want to support Parliamentary democracy and resist the power-grab of an unelected and autocratic government.
We must make sure that the rights of ordinary UK Citizens are not, once again,ignored.
That's the value, importance and impact that ordinary peoples' involvement adds to the challenge that arises from the unique political situation at this time.
What should happen now?
The first step should be for a White Paper to be brought before Parliament for debate (as demanded by the cross-party select committee on Brexit on 14 January 2017), clearly stating what the Brexit objectives are, how (factually) they would benefit the UK, and what must happen if they are not achieved.
This would be an opportunity for the House of Commons to stipulate that MPs must retain control of the process until an acceptable withdrawal agreement has been negotiated for their consideration.
In practical terms, this means a major effort to ensure MPs, Select Committees and others both here in the UK and in other EU countries as necessary are aware of what they can do to protect ordinary citizens’ rights and to dispel the notion that it is inevitable they will be lost.
We are supporting our Parliament, but it is also important for the wider EU world to understand what the democracy issues are, and also that public opinion in the UK is not universally in favour of ‘Brexit at any price’.
As always, we’re asking for your money. It’s the generosity of our supporters which has been the key factor in our success. It has allowed us to retain experts to advise and represent us, people who are also committed to what we and our supporters are doing. We hope that you’ve seen, not only what’s been achieved using the funds donated in previous campaigns, but also our commitment to openness and honesty about everything we do.
To our existing supporters, we would thank you again so and ask you for a little more help.
To new readers/supporters, we’re getting a real head of steam up here, please would you help us to buy more fuel for the fire?
For further information and background on our first legal challenge see:
My Commitment to You
I will keep you informed regularly of the progress of both the Crowd Justice fundraising, what we are doing with the money we raise and the responses we get from the people we talk to and campaign work we do. I will also make sure there are updates from the legal team for those who want more detail.
Why am I doing this?
Whatever the opinions about the result of the referendum on 23rd June, the result has thrust a far more important issue to the fore – Parliamentary Sovereignty. The challenge in the courts has ensured that Parliamentary Sovereignty is maintained and is respected by the Government of the day.
What we must do now is ensure that Parliament is fully aware of the fundamental citizenship rights that are at risk and that Parliament maintains control of the process of deciding when, how and under what conditions the UK leaves the EU.
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 these 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, on its intention to withdraw from the EU and the Single Market without 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.
Even after the Courts have ruled that the use of Royal Prerogative to trigger Article 50 is unconstitutional the Government persists with the notion that it can refuse to allow the UK's Sovereign Parliament effective control of the process of leaving the EU.
This is an act of constitutional vandalism.
About the claimants
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 am co-ordinating the People’s Challenge –a group of campaigners who are absolutely committed to ensuring that it is the UK's Parliament that decides on when, how and with what conditions the UK leaves the EU.
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, Fergal McFerran, a student leader, from Northern Ireland and Tahmid Chowdhury, 21, a London student.
The legal team
Bindmans LLP, a leading London law firm, is representing us. Solicitor of the Year award-winner, John Halford is leading the Bindmans' team. Our barristers are all public and constitutional law specialists and, just as importantly, are fully committed to ensuring that ordinary members of the public have a say in this challenge. They are presently Helen Mountfield QC, Gerry Facenna QC, Tim Johnston, Professor Robert McCorquodale, David Gregory and Jack Williams. We will deploy and add to the team as needed, drawing on the best legal talent available to maximise the impact of our advice.
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The People's Challenge – Thank you and a brief moment to draw breath.
We have achieved very nearly all we aimed for during The Second People’s Challenge. This has only been possible because of your support. Thank you for the time, effort and money you have given us.
We collectively must not forget just what we have achieved together and how it all works towards our being able to protect people’s EU citizenship rights and the Sovereignty of the UK’s Parliament.
- We have challenged the Govt. over its intention to use Royal Prerogative to trigger Article 50 and we won in the Divisional Court and the Supreme Court.
- Whilst doing this we also successfully challenged the Government over its demand to keep its and others’ arguments secret.
- In challenging the Govt. on its right to use the Royal Prerogative, we established an important Constitutional point - only the UK's Sovereign Parliament can remove or restrict fundamental citizenship rights, and to do so it must pass primary legislation.
- We developed this by commissioning the Three Knights Opinion. This opinion sets out clearly and authoritatively that the UK's Parliament must decide, through an Act of Parliament, what happens at the end of the Article 50 negotiations, and that the options include deciding to Remain in the EU.
- The Second Challenge was to convince Parliament to add this to the face of the EU (Now) Bill. We were able to convince the HoL to pass an amendment to the Bill. Unfortunately we did not convince enough MPs to keep that amendment in the Bill.
The Three Knights Opinion remains in place and we are ready to mount a challenge if the Government attempts to force the results of the negotiations through without a meaningful vote on what is the best among all the available options for the UK.
We will also monitor the powers the Government intends to use to implement the “Great Repeal Bill”. The Government cannot be allowed to side-line Parliament on the scrutiny and implementation of legislation for any eventual decision in favour of the UK leaving the EU.
At the moment we are extending our partnerships with other organisations and establishing The People’s Challenge as a Community Interest Company. These two moves will help us to continue the work we are doing and raise funds from sources in addition to our direct supporters.
Once again, thank you for all your support.
Chris, Fergal, Grahame, Paul, Rob and Tahmid
In our last two updates we discussed the ongoing challenge to democratic accountability and individual rights presented by the Brexit process and the Government’s tactics.
But what are we going to do about it?
The work we planned for the Second People’s Challenge campaign is almost concluded. The most important outstanding task is to produce a concise guide to the anticipated battles ahead over the next two years and the opportunities each presents for legal and other action to be taken by concerned citizens like us and our supporters. The Great Repeal Bill, foreshadowed by today’s White Paper is one example, but there are many others.
Besides planning this ‘battles ahead’ guide, we have been:
- considering whether we might make a helpful intervention, based on the Three Knights Opinion, in Jolyon Maugham QC’s Dublin case on revocability of an Article 50 notice;
- liaising with other organisations like Liberty, 89UP, the3million and Open Britain to identify opportunities for working together effectively;
- investigating how practical help might be given to the tens of thousands of EU nationals struggling with the bureaucratic process surrounding applications for residence and what opportunities there may be for strategic litigation; and
- looking into incorporating the People’s Challenge to make fundraising from different sources easier in future.
The funds we have raised so far have been exhausted by the work immediately following the Supreme Court judgment, briefing and liaising with MPs and peers at multiple stages of the parliamentary process of the EU (Notification of Withdrawal Bill), producing, publishing and distributing our plain English guide to rights under threat and, critically, the Three Knights Opinion.
Given this, and the fact we extended our commitments, we would greatly appreciate one more small donation from each of our supporters towards the current CrowdJustice fundraising campaign. This will help close the gap between the funds raised to date and our £100,000 stretch target, so our legal team can be properly paid once all other expenses are covered. The campaign was to close today but we are extending it for 14 days to help with the additional fundraising needed.
We will keep our supporters informed of what we’re up to after the current campaign closes and the ‘battles ahead’ guide is posted. We are very grateful for your support so far – financial and otherwise.
Article 50 notification - Time to hold people to their promises
Today, Theresa May has given notice under article 50 that the UK intends to leave the EU.
A leaked resolution by the European Parliament has come to light, detailing its position on Brexit negotiations. The red lines in this resolution will have to be respected by the UK if we are to have an exit deal.
As the Government has finally admitted, “no deal” would be bad for the UK.
The balance in these negotiations is already tipped so far in favour of the EU that a positive outcome for the UK will be dependent on the goodwill of the EU - not the skill and judgement of the PM or her negotiators.
This is a “high point” in a divisive premiership. There has been a disastrous run-up to negotiations.
Theresa May and the Brexiters have so antagonised the EU and its members that now the UK is triggering a set of negotiations so unbalanced they will make schizophrenics look positively focused.
At the conclusion of these negotiations, Theresa May will try to force Parliament's hand to choose between two options: her way or the highway.
She is calling now for unity behind a common cause. What she wants is our support for her cause, a cause that maintains support for her among the UKIP wing of the Conservative Party and the right wing press.
She is not seeking support for a common cause.
The common cause should be and must be the cause that is in the best interests of the whole UK and all its citizens.
With your support in all its forms, the People's Challenge has already upheld Parliamentary Sovereignty and will continue to do so, taking the case back to court if necessary.
The “Three Knights Opinion” has given us the material to mount this case, if we have to. We think we will probably have to. Given the story so far, it's hard to believe otherwise.
We believe that ordinary people like us will help defend our fundamental citizenship rights and the UK's Parliamentary Sovereignty.
At the conclusion of these negotiations, Parliament will decide what is inthe best interest of the UK and its people. It will choose what is best for the UK from all the options available.
It is not a “deal/no deal” choice. The expert legal opinion of the “Three Knights” says so.
With your help, we will quench the fires of rabid Brexiters, enabling cooler, calmer heads to prevail.
The People's Challenge - The next phase begins
The weekend's march in London was a resounding success. Over 100,000 people participated, more than in any other event in Europe, on the anniversary of the Treaty of Rome.
Excellent speeches were made by people from across the political spectrum, and the age spectrum too, criticising the Prime Minister's policies and attitudes, as well as her shocking disregard for anybody and anything she doesn't agree with.
The march demonstrated the incompatibility of the Prime Minister's hard Brexit objective with the views, opinions and values of those the 100,000+ present, as well as the many others they represented who couldn't be there in person (some placards listed the names of absent supporters).
It is increasingly apparent that the PM only cares about the will of "her" people as she struggles to impose her will on those who do not agree.
An example is her insistence that the UK only has two choices: leave with a deal or leave without one. Many disagree with her "Deal/No Deal" strategy, and for good reason.
The People's Challenge commissioned the most authoritative legal opinion on the subject of article 50 and British Parliamentary Sovereignty, the "Three Knights Opinion". This authoritative document, the product of some of the finest legal minds in the country, has given us the tools to uphold our system of representative democracy and our Parliament's Sovereignty.
Notification of withdrawal will shortly be given to the EU and they will respond in June, thereafter negotiations will take place. At the conclusion of these negotiations we will be able to see whether the Brexiters assertions have been realised, the deal will be put before Parliament for approval.
Despite all Theresa May's assertions, Parliament will do what it will with the deal: accept it, send the PM back to the negotiating table, reject it and fall out of the EU, or alternatively, withdraw notification for want of an acceptable deal. Parliament will decide what is in the best interest of the UK and all its peoples and nations.
If necessary, the People's Challenge will take legal action, as it has already done. The Government will be held to account and MPs will be encouraged and supported in the process of deciding what is in the best interests of ALL the nations and citizens of the UK.
Many MPs are already stepping forward to take a stand against the rhetoric and abuse directed at them - abuse that is aided and abetted even by some senior Government figures.
What we must do to ensure the continued functioning of our democracy is threefold:
First, we must help support our MPs in the face of vitriolic abuse and threats by hardcore Brexiters and others who are prepared to cut a deal with the devil and destroy our democracy in order to get what they want.
Secondly, we must help to uphold the rule of law, a fundamental cog in the wheel which moves all democratic and safe societies, going to the UK courts if necessary.
Thirdly, we must protect EU citizenship rights. Lives and futures have been planned and built based on these rights: therefore any modification of them must be very carefully thought through and executed if we are to live in a just and humane society.
March 25th - 100,000+ say Stop The Silence and Unite For Europe
The People's Challenge is delighted to report (particularly when the BBC among others is not) that the Unite For Europe March yesterday was fantastic.
Police estimate that over 100,000 people attended and it generally went without a hitch.
Some great speeches were made and a great sense of polite and controlled discontent was expressed regarding the Prime Minister's stance on Brexit, EU citizens rights, pending austerity, etc.
The People's Challenge is leaving its Crowdjustice page open. There is work still to be done to contact movers and shakers both in the UK and in the EU, as well as preparatory work for the next stage of our plan.
More information will follow when details are firmed up.
March and make our voice heard - March 25th London
Tomorrow's march is going ahead, the organisers (Unite For Europe) have confirmed this, and although European Movement UK have pulled out, all other participants(and several additions) will be present - you can find the text of the Unite for Europe press release here.
Chris Formaggia of The People's Challenge said:
“I am sure that we have all been vexed by the march this weekend in the light of the murders at Westminster.
My initial worry was would it be viewed to be in bad taste and then secondly was it fair to be placing additional burden on the security forces at a time when they are clearly very stretched.
My conclusions are that on balance it is right to continue the march because it is a clear and graphical illustration of how civilised people go about seeking political change and therefore it is the best way that we can honour the memory of those that lost their lives or who were injured.
For this reason I intend to continue to participate.”
Sadiq Khan said at yesterday's vigil in Trafalgar Square: “[The vigil was held]to send a clear, clear, message – Londoners will never be cowed by terrorism”.
This message of course applies to everyone, not just Londoners. We must not let violent thugs take our freedoms - freedom of religion, freedom of politics, freedom to demonstrate... If we stop exercising these and other freedoms as a result of terrorism, then hate and intolerance have already won.
Although it's not genuine in its origin, the now-famous Tube sign says it all:
Threats to democracy, as always, come from many different directions and we must resist every one of them.
The People's Challenge will meet up with supporters in front of The Dorchester tomorrow from 10:00 onwards.
We look forward to seeing you there!
It is not about what we have not yet achieved, it is about those things we have achieved – so far.
This update is about reminding you of the things that you’ve helped to achieve.
It can be hard to remember where we all started from, especially when things seem as if they aren’t going our way. So let’s look back on a few “impossibles” we’ve achieved to date.
We obliged the Government to abandon its attempt to keep its arguments secret prior to the Divisional Court case, which the Government then lost.
The crucial element in the winning of the case in the Divisional Court were the arguments we put forward, showing that only Parliament can authorise the removal of fundamental UK citizenship rights.
Not many people thought we could win. But we did win, and thousands of you backed us by contributing to the huge amount of money raised through Crowd Justice.
If we and others hadn’t taken on the government, Theresa May would have triggered Art. 50 when she walked into No 10.
Having won in the Divisional and then the Supreme Court, we knew that was not going to be the end of it, and we had a plan ready to put into action.
Having kicked off research about the revocability/conditionality of Art 50, we commissioned the “ThreeKnights Opinion”, written by 5 experts with impeccable credentials. It is fair to say that the “Three Knights Opinion”, together with the skills and savvy of our legal team, was pivotal in influencing the HoL to support the meaningful vote amendment.
Ultimately, the HoC removed the amendment, BUT they cannot remove the “3 Knights Opinion” – it is there to be used to hold the Government to account, we just have to judge when the time is right to do that.
So we must keep our chins, tails and dander up.
The Government has tried and failed four times to “see us off”, we are still here and we’re not out of ammunition!
The conductor is playing her dissonant symphony for now (see the reports of the Commons Brexit Selecte Committee where David Davis admits that the Gov. has NOT done an economic impact assessment of leaving the EU without a deal).
But we are waiting in the wings, ready to act when the time is right.
If it is necessary and when the time is right we will mount or support a challenge to any attempt by the Government to force the results of the negotiations without a meaningful vote on what is in the best interests of the UK.
The Fat Lady is there with us, under strict instructions that there will be no singing until Parliament has decided what is in the best interests of the UK.
The decisive moment
On Monday afternoon MPs will debate the European Union (Notification of Withdrawal) Bill again. The Government’s aim is to strip away the EU residents’ and parliamentary approval amendments, then return the Bill to the Lords and press there for it to be passed in its original form, unamended. The Prime Minister hopes to give the Article 50 notification soon afterwards, as soon as Tuesday, according to some reports.
We promised to take urgent action to remind MPs of their constitutional and moral responsibilities ahead of the next Commons debate, so that they can decide which way to vote on an informed basis.
We are taking that action.
First, our legal team prepared a fresh briefing, Seven reasons to stand up for Parliament’s sovereignty. It explains that Parliament is being asked to write a ‘blank cheque’, giving ministers power to withdraw the country from the EU, two years from now, on whatever terms ministers agree, or indeed without any agreement at all and that allowing the Government to proceed in this way would be the most serious abdication of parliamentary sovereignty in living memory. The manner and terms on which we withdraw from the EU will have implications for the rights and interests of every citizen and business, for years to come. Parliament must take responsibility for those decisions. The parliamentary approval amendment asserts parliamentary sovereignty and puts it in its proper place - in black and white on the face of the Bill.
Secondly, 650 briefing packs were prepared for containing an introductory cover sheet, the new briefing, the Three Knights Opinion and a professionally printed version of our plain English 'Gold Card' booklet about the citizenship rights at stake in the Brexit negotiations. Every single one of the country's MPs has been sent one.
Thirdly, over the weekend, the team will send the briefing in electronic form and links to the other materials to all MPs and parliamentary assistants. They will also make contact with key MPs to emphasise its importance and answer questions.
The value our work is adding to the debate over Parliament’s role becoming very clear. The Three Knights Opinion was referred to repeatedly in the Lords debates, and many peers draw on our Lords briefing in their speeches on the parliamentary approval amendment. Labour has said it will fight to keep the amendment in place. And yesterday the House of Commons Library, which produces authoritative, non-partisan briefing papers for MPs, published a special 49 page paper discussing the Three Knights Opinion to inform Monday’s debate.
Our action is effective because of your support. Please do continue to back us at this critical time.
You can take action yourself today, first by making contact with your MP, ideally at a local constituency surgery this weekend, or by e mail, or via their parliamentary assistant by phone on Monday morning (020 7219 3000 and ask to be put through to their office giving your MP’s name). Urge them to read the briefing pack, especially the Seven reasons to stand up for Parliament’s sovereignty briefing. If you can meet with them, download it and take a copy along. Tell them why this issue is so important to you. Some key points are set in the last update.
Secondly, please consider making a further small donation towards our fundraising stretch target via CrowdJustice. This last, big push is time consuming and costly. But whatever happens on Monday, we believe we should do everything in our power to improve the Bill now, at this decisive moment.
Make sure your MP stands up and is counted in the fight for parliamentary democracy
As discussed in previous updates, the government is determined to overturn the parliamentary approval amendment we backed as well as the earlier amendment that aims to protect the position of economically active EU nationals here on the date Article 50 notification is given.
Worse still, the government is acting very swiftly. The debate to overturn the amendment is likely to take place next Monday, 13 March in the afternoon and could well be followed by a further Lords debate the same evening.
We are moving as quickly as we can to brief MPs on why they should resist the attempt to overturn the parliamentary approval amendment.
We also believe the EU nationals amendment should remain in place:
the proposed protection would be both compassionate and pragmatic;
case-by-case decisions on the fate of millions are impractical;
and acknowledging that resident EU nationals should remain here would encourage other EU states to reciprocate with their UK national residents.
In the meantime, however, you can take direct action yourself by making your MP aware of your own views on the parliamentary approval amendment on the importance of Parliament, not the Government, deciding on your own and your family’s future once the outcome of negotiations with the EU and the 27 remaining member states becomes clear.
You can do this by:
finding out who your MP is using this link;
making direct contact with them or, if they are unavailable, their Parliamentary assistant (whose details you should be able to obtained by calling 020 7219 4272);and
either setting out your views clearly and concisely in writing and asking them to reply and commit to defending Parliamentary sovereignty; or
better still, arranging to see them tomorrow or over the weekend at a local constituency surgery to explain your views in person; and
telling them that they can expect to receive a briefing from the People’s Challenge solicitors, Bindmans, and asking them to look out for and read it.
Some key points you might want to consider making are:
what is at stake for you and your family in the Brexit process and who you want to be the ultimate decision maker over what happens to you– Parliament or the Government;
whether you are concerned about there being no deal agreed with the EU at all, if so, why and what role you would expect Parliament to have at that stage;
whether you believe Parliament been given a good reason for surrendering its sovereignty to the Government in relation to the most important constitutional decisions of a generation;
whether the Government’s reason for not giving Parliament a meaningful say on the outcome of negotiations – to improve its negotiating hand – makes sense toyou; and
what you expect your MP to do now, as your elected representative.
Last, if you have not already done so, please consider making a further donation to back the The Second People's Challenge: helping Parliament take control.
Rock on the Lords, can the Commons Jive - a resounding cheer for the Lords and now, thanks to your support, on to the fight in the Commons .
On Tuesday evening, a record number of peers passed, by a majority of 98, an amendment to the European Union (Withdrawal Notification) Bill, giving Parliament a meaningful vote on what happens at the conclusion of the Brexit negotiations. The Bill now says that the power to notify can only be exercised subject to Parliament’s final decision on the outcome of the negotiations.
This amendment is a massive improvement on the Bill in its original form. As we said in our briefing to peers, there is no good reason why Parliament should not explicitly define in the Bill its sovereignty over the most important constitutional decision of our time – whether we should leave the EU on any terms the Government negotiates or, if no terms can be agreed, what should happen next.
This was a principled position championed time after time during the debate.
The five key points we made about the merits of the amendment were all highlighted.
First, the amendment ensures a meaningful choice for Parliament, not just a “Deal/No Deal” vote on the result of the Government’s negotiations.
Baroness McIntosh of Pickering picked up this point and quoted from the “Three Knights Opinion” including:
“I will refer also to an article written by five eminent QCs, including three knights, who gave their opinion on the matter and stated:
‘Meaningful Parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms. Equally, it cannot be achieved by a single ‘take it or leave it’ vote at the end of the process’”.
Lord Hailsham added:
“I believe that the proper interpretation of the referendum is this: it is an instruction to the Government to negotiate withdrawal on the best terms they can get. But that raises an absolutely fundamental question to which this proposed new clause is directed. When the negotiations have crystallised and there are agreed terms—or, perhaps, no agreed terms—who determines the way forward: is it the Executive or is it Parliament? That is the old question we have to resolve. In my view, any believer in a democratic state has to say that the authority lies with Parliament.”
Second, the amendment would give Parliament genuine control.
On this, Lord Pannick told the House:
“I find it disappointing that those who most loudly asserted the importance of the sovereignty of Parliament during the referendum campaign are now so alarmed by the prospect of the sovereignty of Parliament at the end of the process.”
Lord Hailsham added:
“Our sole purpose is to ensure that the outcome—agreed terms or no agreed terms—is subject to the unfettered discretion of Parliament. It is, in our view, Parliament and not the Executive which should be the final arbiter of our country’s future. Ironically, in this sense we stand with the campaigners for Brexit who wanted Parliament to recover control over policy and legislation.”
Third, the amendment would make explicit the need for Parliament’s approval of any agreement and that an “assurance” from the Government that Parliament will be asked to express a view in a consent motion is constitutionally meaningless.
On this Baroness Smith, Labour’s Shadow Leader in the Lords, explained:
“Our priority is Amendment 3, to ensure that Parliament has a meaningful vote and that we maintain parliamentary sovereignty… “
Baroness Symons of Vernham Dean added:
“We need this in the Bill because the Government have form for bypassing Parliament, and we need to know that that will not happen again.”
Lord Heseltine said the same:
“This amendment, as the noble Lord so clearly set out, secures in law the Government’s commitment, already made to another place, to ensure that Parliament is the ultimate custodian of our national sovereignty.”
Baroness Jones added:
“During the referendum we voted for taking back control. However, taking back control does not mean giving such a momentous decision for the future of the UK to a tiny cohort of politicians.”
then went on to say:
“People change. Governments change. We cannot be sure that the same people will be in power when this finally happens, so it is important to get a commitment. Parliament has to have scrutiny, and a say in something so incredibly important—a deal that is being thrashed out between the UK and the EU that will affect our future for ever. I also think it is a mockery if the European Parliament gets a vote on this and we do not. That again is not taking back control.”
Fourth, the amendment was clear about what Parliament must decide.
Baroness Altmann put the point in this way:
“I believe it is my duty, given the very serious concerns that I have expressed, to ask the other place to reconsider the need for elected MPs to take responsibility for the future of their constituents. I believe that they must have the final say on the Bill and I want to ask them to think again.”
Last, the amendment would provide greater legal certainty, important because the UK’s decision to withdraw from the EU can only be effective for Article 50 purposes if taken in accordance with the UK’s constitutional requirements.
Baroness Kennedy developed this point very powerfully:
“the Supreme Court’s principal conclusion was that primary legislation is required to authorise the UK’s withdrawal from the European Union. I make it clear that this Bill is a notification Bill; it is not an authorisation Bill.”
Baroness Kennedy went on to say:
I also remind the House what the Supreme Court judges said. They said that the reason why this was a matter for Parliament—both the notification and, finally, withdrawal—was because any fundamental change to our laws that inevitably amends or abrogates our individual rights requires the approval of Parliament.”
The Bill returns to the Commons for further debate focused on the Lords’ amendments.
Our next step is to send every MP a briefing pack and to support key MPs who will influence the debate (anticipated to take place in the first half of next week).
It is an ambitious objective to hold the parliamentary control amendment in place, but it was ambitious to believe we could get this far.
As ever we need your backing. We’ve got this far because of you.
We must never doubt our ability as individuals to gather together and change circumstances.
Please help keep the campaign rolling by making another donation and/or encouraging others to support what we’re doing. This will mean we can continue to make your voices heard and ensure Parliament’s control over all our futures.
For the moment, I’ll let Michael (Lord) Heseltine have the final word on the amendment:
“It ensures that Parliament has the critical role in determining the future that we will bequeath to generations of young people.”
Please back the The Second People's Challenge: helping Parliament take control and help our parliamentarians ensure that Parliament has meaningful control over the Brexit process.
We must not lose our faculty to dare
By the end of today we will know exactly how high the House of Lords has set the bar for the House of Commons in terms of sensible amendments to the Brexit Bill and explicitly embedding Parliamentary Sovereignty in the process.
This is not about blocking Brexit, indeed, contrary to what many would have you believe, the Lords cannot block Brexit, it can only ask the Commons to reconsider the Bill.
What it is about is ensuring that our constitutional law is upheld, that our democratic processes are followed and that Parliament is properly informed on the terms of the exit deal, or the absence of such a deal, when deciding the future direction that the UK is to take.
I have said elsewhere that this is not a time to take momentous decisions without knowing the circumstances under which the UK will be leaving the EU. This is reinforced in the “Three Knights Opinion” (commissioned by The People’s Challenge) which says that Parliament cannot make decisions based on an unknown deal and set of circumstances 18 months or so into the future.
The world is in a state of flux: Europe (including the UK) is not immune to this and has no control over many of the factors causing it.
Furthermore, there are elections due in the next few months in a number of the EU’s major member states, and we still do not know Trump’s attitude towards Europe in general and the EU and NATO in particular.
Not only is it properly respectful of our Parliament’s Sovereignty for its role in the Brexit process to be explicitly defined , it is prudent to do it to ensure that the decision is made in the best interests of the UK when the terms of the deal, if there is one, are known.
So it’s “game on” again with the Commons, building on the success of influencing the decisions in the Lords, to which we are proud to have contributed.
We will need to close much of the gap between what we’ve raised so far and our £100,000 stretch target to have a real impact in the Commons when the Bill returns there. Our success so far in making a difference gives us hope of making an ever-greater difference.
That’s why we’re extending our CrowdJustice campaign to cover this crucial next phase, to help us do the very best we can to support Parliamentary Democracy and good sense.
Please carry on helping us to make sure your voices are heard – making a small further donation now to the campaign could help make a big difference to what the Bill allows and how much say Parliament will have about the rights that your family and you will enjoy two years from now.
“We must not lose our faculty to dare, particularly in dark days”.
The difference you and the People’s Challenge are making to the debate in Parliament.
This week the House of Lords acted decisively and courageously to amend the European Union (Notification of Withdrawal) Bill to require proposals to protect the future of EU nationals resident in the UK when notification is given.
On Tuesday, 7th March, they will have the opportunity to do so again during the Bill’s Report Stage debate. That will be when the ‘parliamentary approval’ amendment (see page 2) we are backing will be debated.
All peers were sent our amendment briefing electronically, and over 100 with a special interest in EU and constitutional issues were also sent hard copies. There has been a high level of interest in the briefing, including from those who used it and the Three Knights Opinion (commissioned by the People’s Challenge) in their speeches, and many have kindly contacted us to say how useful the information is.
If further evidence is needed of the practical contribution the People’s Challenge makes to the debate, you only have to read what Baroness Wheatcroft says in her piece for the Guardian:
“The “Three Knights” legal opinion, commissioned by the People’s Challenge campaigners, allied to Gina Miller’s Supreme Court case on Article 50, is clear that the government does not have the legal authority to leave the EU without a new Act of Parliament.
So when the Lords vote next week, they will have not only sense but the law on their side. That should make them brave enough to send a very strong message and, if necessary, to repeat it.”
The Bill is now sure to go back to the Commons. We are very hopeful that when it does, it will contain the parliamentary approval clause which will make Parliament’s future role explicit. There will then be a final battle in the Commons to make sure the amendment stays in place.
In the meantime, we plan on sending out a further briefing to those peers who have already supported amending the Bill.
If you personally want to encourage peers to consider voting for the parliamentary approval amendment, then do take action now by e-mailing them, telling them why embedding Parliament’s right to make final decisions on withdrawal and any future agreement with the EU is so important, and encouraging them to read our amendment briefing if they have not already done so. You can find peers’ e-mail addresses here.
Thank you for your backing which makes it possible for us to support peers with an interest in fighting for parliamentary sovereignty. We will post a further update once the outcome of the Report Stage debate is known.
Peers highlight the importance of Parliament’s ‘final say on individual rights’ in debates on the Bill
The House of Lords Second Reading debates on the European Union(Notification of Withdrawal) Bill 2017 were completed last Tuesday.The Committee Stage debates begin today (the second day is 1 March).This will be the peers’ first opportunity to vote on any of the proposed amendments to the Bill. Votes on amendments are also very likely at Report stage on 7 March.
There is no prospect of the Bill as a whole being defeated, but there are encouraging signs that peers will fight hard for Parliament’s right to decide both on the acceptability of any withdrawal agreement the Government negotiates with the remaining 27 EU states and on what to do if the negotiations stall or fail altogether. That right reflects Parliament’s responsibility for future decisions that impact on individual rights, repeatedly stressed by Supreme Court in the Miller judgment (paragraphs 5, 82-83, 87, 101, 111 and 124).
The Three Knights Opinion which we commissioned and sent to peers helped ensure this issue featured prominently in the Second Reading debates. Shortly afterwards, The Sun ran an exclusive story suggesting ministers had been so unsettled by what Lord Hope and others had said about the Opinion that they were contemplating consenting to an amendment to embed parliamentary sovereignty in the Bill and ‘secret talks’ had begun about its form.
We will need to wait and see what comes of this.The Bill is unlikely to be amended in a way that confronts all of the constitutional problems identified in the Three Knights Opinion, but it certainly can be improved by amendments.
Having reviewed those that have been submitted for debate and the support they are likely to attract, we have decided to urge peers to support the ‘parliamentary approval amendment’proposed by Baroness Hayter, Lord Hannay, Lord Pannick and Lord Oatesand have sent all active peers a detailed briefing about this.
In our briefing, we point out the irony of ministers telling Parliament it will be offered no more than a ‘take it or leave it’vote bearing in mind what was decided by the Supreme Court in Miller and accepted in the White Paper: “[t]he sovereignty of Parliament is a fundamental principle of the UK constitution”.Parliament cannot fulfill its own constitutional role by writing a‘blank cheque’ authorising withdrawal from the EU two years from now, either on whatever unknown terms may be agreed, or without any agreement at all. To do so would be a serious abdication of parliamentary sovereignty, with implications for the rights of every UK national and business.
The parliamentary approval amendment would improve things considerably. It would make it clear that the UK cannot agree to leave the EU on agreed terms unless Parliament consents to the terms of any withdrawal agreement negotiated with the EU and, if there is one, an agreement relating to the future trading relationship. It would also prevent the Government from unilaterally abandoning negotiations without Parliament’s authority. The amendment would create meaningful choices for Parliament on the face of the Bill,give Parliament genuine control by confirming its approval a precondition to any new agreement, clarify much of what Parliament must decide and so provide greater legal certainty.
Many peers have shown they appreciate just how important it is not to surrender parliamentary sovereignty. For example, Lord Heseltine has said he will back amendments that protect it. In the Second Reading debate Lord Kerr, former UK ambassador to the EU, former head of the UK diplomatic service and author of Article 50, told fellow peers:
“…we need to consolidate in the Bill the Government’s quasi-commitment to give Parliament its say before the die is cast on any emerging settlement.The European Parliament’s similar right is enshrined in the language of Article 50. This Parliament deserves no less. It will not do just to give Parliament Hobson’s choice—to say, “It’s this deal or no deal”. Timing is crucial. Parliament must have the chance to consider at least three other options.
Under option one,Westminster could follow the frequent practice of the United States Congress, say that it does not like the emerging deal or some particular aspect of it, and ask the Executive to go back and try harder…
As regards the second option, if timing proves tight Westminster could invoke Article 50(3) and invite the Government to seek an extension of the two-year period. The European Union is a union of democracies. If this Parliament asked for an extension, and our Government conveyed our request, in my judgment it would certainly be given.
Under the third option, Parliament could invite the Government or the country to think again. An Article 50 notification is not irrevocable. The President of the European Council and a gallery of EU legal luminaries have confirmed—of course, the noble Lord, Lord Lester of Herne Hill, is among their number—that a member state may, in accordance with its constitutional requirements, withdraw its notification within the two-year period or its extension. This morning, the noble Baroness, Lady Symons of Vernham Dean, asked about the Government’s motive in conniving in the High Court at the fiction of irreversibility. I cannot answer her but the fact is that Article 50, which first saw the light of day under the heading“voluntary withdrawal” is not an expulsion procedure. We remain full members of the European Union throughout the negotiating period—the two years or its extension. If, having looked into the abyss, we were to change our minds about withdrawal, we certainly could and no one in Brussels could stop us. If it were not so, I would have to oppose the Bill. As it is, all we need do is improve it and make sure that the rendezvous with history, which comes when we know what the Government want for the future of our country and its relationship with our continent, is clear.”
Lord Lisvane commented:
“In the referendum campaign we heard a lot about regaining our parliamentary sovereignty; perhaps it is a little ironic that we have had in the first instance to rely upon the assistance of the courts. However, it would be even more ironic if the legislative process of withdrawal involved a major transfer of power to the Executive….”
Lord Strasburger commented:
“Should we not be asking ourselves: why are the Government in such a hurry? Why are they so intransigent and intolerant of meaningful scrutiny of the deal they hope to bring back from the negotiations? The explanation must be that deep down they realise that they cannot possibly secure a deal anywhere near as good as the one we have right now. What everthey get will not stand up to close comparison with membership of the single market and the customs union…
Our patriotic duty is to scrutinise and amend the Bill. We must protect Parliament’s sovereignty and give it a chance to accept or reject the deal, with the status quo as one of the alternatives, rather than automatically going over the WTO cliff. We must protect the rights of EU nationals already in the UK and we must give the people a say in the final decision. That way, if the best deal the Government can get is not good enough, Parliament and the people will have a final chance to stop the self-destruct button being pressed.”
and Lord Pannick also made a powerful speech observing:
“I think that the Bill requires amendment, in particular to ensure parliamentary sovereignty as the process of withdrawal occurs over the next two years. Noble Lords know that the Prime Minister has promised that any agreement with the European Union on the terms of our withdrawal and our future relationship with the EU will require the agreement of both Houses of Parliament. She has said that the agreements will so require before any agreement is put to the European Parliament for its consent. That promise should be written into the Bill. A political promise, made by the Prime Minister in good faith, is no substitute for a clause—an obligation—in an Act of Parliament.The reason for that is that political circumstances can change; Prime Ministers can change over the next two years. On a matter of this importance, it is vital to ensure that there is a clear and binding obligation on the Government to return to Parliament at a defined time to seek the agreement of both Houses of Parliament for the terms of any agreement. As the noble Lord, Lord Kerr, said, this Parliament must have at least the same powers that the European Parliament has to disagree with the terms of any draft agreement…
I am also concerned about what happens if there is no draft agreement between the UK and the EU on the terms of our withdrawal. In my opinion, parliamentary sovereignty must also apply in those circumstances. Surely it must be for Parliament to decide whether we prefer no deal or the deal offered by the EU. It is for those reasons that I have added my name to an amendment that would require parliamentary approval for an agreement or for no agreement. The Supreme Court recognised the constitutional requirement for Parliamentary sovereignty. I hope noble Lords will do likewise.”
In total, 184 peers took part, making this the largest second reading debate on record.
As the debates progress, we will continue to do all we practically can to support peers who are willing to fight to preserve Parliament’s final say so that it remains responsible for the individual rights at stake.
First reactions to the Three Knights Opinion in the press and Parliament.
Last week our Three Knights Opinion on the UK’s constitutional requirements for leaving the EU and revocability of an Article 50 notice was published and sent electronically to all active peers. Our legal team also made contact directly with around 100 key peers by letter and e mail to ensure they had received the Opinion and appreciated its significance.
Meanwhile, there were early reactions to the Opinion in the media. It was featured in the Times’ Daily Brief to lawyers. The well known legal journalist Joshua Rozenberg wrote about it (‘Pro cake and pro eating it’). Professor Mark Elliot published a blog to which other academics are preparing responses. The Independent and Sputnik News published short pieces. The New European is to run a more detailed story.
Most heartening,however, were the contributions to yesterday’s Second Reading debate in the Lords that drew on the Opinion.
One of the last to speak yesterday, Baroness Lister, said she had been strengthened in her belief:
“…for the reasons I have given and many others—including the Three Knights’Opinion on the constitutional implications of Article 50—that, to turn around the words of the Brexit Secretary, it is our patriotic duty to return the Bill to the Commons with key democratic and rights safeguards added.”
and Lord Hope, a former Supreme Court Justice, had this to say:
“I would caution the Government against thinking that by introducing this legislation they have done all that the Supreme Court’s decision in Miller requires. Brevity is all very well but much more lies ahead. If passed, the Act will give the Government all the authority they need to give notification of the UK’s intention to withdraw from the EU under Article 50. That is what the Bill says. However, the notification does no more than start the Article 50 process. The article makes it clear that the process involves two more stages,both mentioned in the article: negotiation, and the concluding of an agreement between the Union and the state in question. The Bill says nothing about these two further stages. I do not think it needed to give the Government the authority to negotiate, as none of the rights of the people who have written to us will be affected or lost at that stage. However, the concluding of an agreement is another matter entirely. The Bill does not say anything at all about that stage of the process.
The White Paper—written, of course, after the Bill was published—now tells us that the Government will put the final deal agreed between the UK and the EU to a vote in both Houses of Parliament. That was confirmed by the Secretary of State in the other place on 7 February when he said that it was intended that the final agreement would “be approved by both Houses of Parliament” and that “this will happen before the European Parliament debates and votes on the final agreement”.—[Official Report, Commons, 7/2/17; col. 274.]
The timing is right,but obtaining approval by a resolution in Parliament is not the same thing as being given statutory authority to enter into that agreement—or, indeed, to withdraw from the EU if there is no agreement.
There is a respectable argument, which other noble—and noble and learned—Lords may say something about later in this debate, that only Parliament has the constitutional authority to authorise, by legislation, the concluding of an agreement with the EU or the act of withdrawal if that is what the Government decide that they have to do. As the Supreme Court said in Miller, at paragraph 123, a resolution of Parliament is an important political act, but it is not legislation and “only legislation which is embodied in a statute will do”.
That was why the Court held that the change in the law that would result from commencing the Article 50 process must be made in the only way that our constitutional law permits: namely, through parliamentary legislation, which is where we are today. The argument that the Government may face is that the same reasoning must be applied to the final stage in the process, too. Even if there is some doubt about this, legislation would provide legal certainty. It would minimise the risk of further legal challenges.
All I am seeking to do is to caution the Government against thinking that this Bill on its own will give them all the authority they need, or that obtaining approval for an agreement by resolution is the same thing as being given statutory authority to conclude that agreement. They could have provided for that in this Bill, perhaps using the same formula as in Clause 1, by saying that the Prime Minister may conclude an agreement with the EU if the agreement has been approved by both Houses—but it has not done so.
I must make it clear that I will not be asking for the Bill to be amended. Others may do so but, so far as I am concerned, it is up to the Government. My point is that they cannot escape from the effect of the Miller decision when we reach the end of the negotiation. It is all about respecting the sovereignty of Parliament. The law will see to that whatever the Government think, as it always does. I do hope that the Government will be sensible about this, and that further recourse to the courts will not be necessary.”
We plan to ensure all MPs and MEPs receive a copy of the Opinion in the next few days. We will also be gearing up for the House of Lords Committee stage on 27th February and 1st March at which amendments to embed Parliamentary sovereignty will be debated. Further amendments are also possible at report stage on 7th March. The Bill will receive its Third Reading Later that day. Given this, we have extended the CrowdJustice campaign to enable out team to brief peers when needed. There will be another update posted after the today's Second Reading debate concludes.
Three Knights Opinion sent to peers
On Monday the House of Lords will begin to debate the European Union (Notification of Withdrawal) Bill 2017 which is designed to surrender the Parliamentary sovereignty that was upheld by the Supreme Court just weeks ago.
Today we are sending peers the Three Knights Opinion. This is a wholly new and unique legal opinion the People’s Challenge has been able to commission thanks to the invaluable support we’ve had from our CrowdJustice supporters.
We believe the Opinion will make an important contribution to the debate over Parliament’s role at this critical time. It is intended to be the most authoritative view available short of an EU Court of Justice judgment on the relationship between the UK’s constitution and the withdrawal stage of the process set out in Article 50.
The Opinion concludes that, once passed,the 2017 Bill will allow the Prime Minister to notify the UK’s intention to leave the EU and to start the Article 50 process, but that actual withdrawal from the EU will need to be authorised by Parliament in a future Act, once the outcome of the negotiations, and the impact on individual and business rights, is known.
The Bill is being oversold by the Government: it does not authorise actual withdrawal in its current form.
The Opinion also draws attention to the real risk of no agreement being reached within the Article 50 negotiating period, and the constitutional requirement in those circumstances for Ministers to seek legislative consent from Parliament for the UK leaving the EU in the absence of a withdrawal agreement.
The Opinion adds that the UK’s “constitutional arrangements” mean that the Article 50 notification is effectively conditional on Parliament subsequently authorising the UK’s exit from the EU and that, under EU law, there are “very strong arguments” that, if Parliament decided to reject the available terms of withdrawal two years from now, the notification could be unilaterally revoked by the UK (paras 2(vi) and 48). “Article 50 cannot have the effect of ejecting a Member State from the European Union contrary to its own constitutional requirements”, including Parliament’s final decision, say the Opinion’s authors (para 2(vii)).
This is especially important because,during the Second Reading debate, the House of Commons was wrongly told Miller had decided these questions. Sir Oliver Letwin MP said “the Supreme Court has ruled that, in its view, this is an irrevocable act” (HC Deb, 31 Jan 2017,vol. 620, col. 870) and John Redwood MP added “It clearly did rule on the matter. It found against the Government because it deemed article 50 to be irrevocable. It would not have found against the Government if it had thought it revocable” (HC Deb, 7 Feb 2017, vol. 621, col. 281).
These statements are simply wrong. The Supreme Court did not decide that an Article 50 notice could not be withdrawn and refrained from expressing its own view, in particular because the Government’s position was that it would make no difference to the outcome if that common ground was mistaken: see paragraphs 26 and 169 of its judgment.
The Opinion recommends amendment of the Bill by Parliament to provide clarity and legal certainty over the constitutional position. Amendments have been tabled that would help. But the opinion concludes that a further Act of Parliament approving Brexit will be needed even if that does not happen.
We’re calling this the Three Knights Opinion because of who its authors are - Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC and Sir Jeremy Lever KCMG QC (retired). Also involved are the two QCs that acted for the People’s Challenge Group in Miller, Helen Mountfield and Gerry Facenna.
Sir David was appointed in 1989 as one of the inaugural Judges of the newly created European Court of First Instance, and in 1992 was appointed Judge of the European Court of Justice, a position from which he retired in 2004, becoming a judge in Scotland, then a Professor and a Privy Councillor.
Sir Francis Jacobs served as Advocate General at the Court of Justice of the European Communities from October 1988 to January 2006. He has also served as an official with the Secretariat of the European Commission of Human Rights, Professor of European Law at the University of London and Director of the Centre of European Law for King's College London School of Law. He is visiting professor at the College of Europe. He too was appointed a Privy Councillor (in December 2005) and continues to practice at the Bar.
Sir Jeremy Lever KCMG QC is one of the most senior and respected figures in EU and competition law, recognised as a pioneer of both the practice and study of European law in the UK. During his more than fifty years at the Bar he acted in many of the leading cases in the fields of European law, competition law, and regulatory public law, including by or on behalf of the UK Government, the European Commission and the European Parliament.
Here are some further highlights.
The first part of the Opinion is grounded in the constitutional principles at issue in the Miller case. The Opinion develops the Supreme Court’s principal conclusion that primary legislation is required to authorise the UK’s withdrawal from the EU. It states that the current Notification Bill does not authorise withdrawal as:
“it is a constitutional requirement of the United Kingdom that Parliament must expressly authorise the terms of any withdrawal agreement between the United Kingdom and the European Union, or authorise withdrawal from the European Union in the absence of such agreement, in an Act of Parliament. That is because it is only Parliament that can give legal effect to the removal or conferral of individual rights that necessarily follow from that decision” (Para 23).
The Opinion adds that “[m]eaningful Parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms” (para2(ii)).
Although the Government has said that the terms of any deal will be the subject of a Parliamentary vote “before it comes into force”, this falls short of the UK’s constitutional requirements for withdrawal from the EU, which includes authorisation by Act of Parliament (para4(ii)).
The Opinion explains that:
“Parliamentary sovereignty and the principle of legality require Parliament expressly to authorise withdrawal from the European Union on the terms of withdrawal agreed with the European Union, or to authorise withdrawal if no acceptable terms can be agreed. Given the fundamental changes in the law andlegal rights that will result, such authorisation must take the form of primary legislation. Parliamentary resolutions, without legislation, cannot change domestic law, nor amend or abrogate existing rights…” (para2(iii)).
The Opinion then discusses why the Bill is legally inadequate to authorise withdrawal:
“[t]he Bill does not say anything about rights and obligations currently enjoyed under EU law, for example which of them will be preserved, or which will be removed. It does not remove any rights, nor does it make any changes to domestic law, nor authorise the Government to do so. The Bill only authorises the Prime Minister to notify the United Kingdom’s intention to withdraw from the European Union. It cannot serve as the legislative basis for the United Kingdom’s withdrawal from the European Union without it being read as an exceptionally wide enabling law, handing to the Executive power to decide which legal rights may be given away or lost through negotiations with the European Union, or by leaving the European Union without an agreement. No such intention is expressed on the face of the Bill and we doubt that the Courts would interpret the Bill in that way” (para21).
The second part of the Opinion, based on the authors’ unrivalled expertise in EU law, addresses the question of what happens if Parliament decides that the outcome of the withdrawal negotiations is unacceptable. The Opinion makes it clear that Parliament will not be powerless to act even though, on its face, Article 50 suggests that EU membership will automatically end after two years unless the period of negotiations is extended by agreement.
The Opinion establishes that withdrawing the Article 50 notice remains an option throughout the process. It notes that the Supreme Court did not decide the question of whether a notification given under Article 50 may be qualified or can be withdrawn once it is given and concludes that there are “very strong arguments” in EU law“that a notification under Article 50(2) can be given in qualified or conditional terms and can be unilaterally withdrawn” (paras2(vi) and 48).
The Opinion says, therefore, that:
“the United Kingdom is entitled to say to the European Union: ‘We have decided to withdraw and here is our notice under Article 50. However, since withdrawal will involve a fundamental change to our laws and will inevitably amend or abrogate individual rights, the terms of withdrawal, in so far as they have such a consequence, can be given effect under our constitution only by an Act of Parliament, and our decision to withdraw is therefore subject to approval of the terms of withdrawal by our Parliament’”(para 39).
The Opinion observes that “the fundamentally integrationist rationale of the [EU] Treaties and their emphasis on democracy” and the fact that “Member States changing their mind is a common experience in the history of European Union integration” (para 52).
It concludes that, if Parliament decides not to accept the terms of any deal agreed with the European Union and not to authorise Brexit in the absence of any deal:
“the notification would have to be treated as having lapsed because the constitutional requirements necessary to give effect to the notified intention have not been met”…“it would be incompatible with the European Union Treaties for a Member State to be forced out of the Union against its will, or contrary to its own constitutional requirements” (paras 61 and 55).
House of Lords action plan
Debates on the European Union (Notification of Withdrawal) Bill will begin next Monday 20th February in the House of Lords. There will be two main stages. The second reading debate is expected to take place from 3.00 PM that day and to continue until the 21st.The Lords committee stage debates are likely to take place on 27th February and 1st March. The third reading will be on 7th March. The Bill will then be returned to the Commons for any Lords amendments to be considered.
The Bill is hugely problematic. When the Government notifies the EU of the UK’s intention to withdraw under Article 50(2), it will trigger a two-year negotiation period. The Government’s ambition is to negotiate, within those two years, a withdrawal agreement dealing with the terms of the UK’s departure from the EU, and a new agreement setting out the future trading relationship with the EU.
The Government has said that it will “…put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament”, that it intends that “the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union”, that “the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded” and that it expects and intends that this will happen “before the European Parliament debates and votes on the final agreement”.
But such statements by Ministers have no legal force. Worse still, the Government’s ‘concession’ does not address what role, if any, there will be for Parliament if (as is possible) the Government does not reach any agreement with the European Union within the two-year negotiation period. Neither does it cover the consequences, and the options available to the UK, if Parliament were to reject the terms of the deal negotiated by the Government.
Ministers have said that, if no deal is agreed, or if Parliament rejects the deal Ministers have negotiated,the United Kingdom will automatically leave the European Union and fall back on WTO trading rules, without the need for any further decision by Parliament. According to them, the ‘choice’ Parliament will have two years from now is binary, to ‘take it or leave it’ by either accepting the terms negotiated by Ministers or automatically defaulting to a hard Brexit without any negotiated withdrawal terms or transitional arrangements.
What can the House or Lords do about this?
First, peers can challenge the Government’s stance on Parliament’s future role. Ministers may believe that repeatedly characterising Parliament’s choice as ‘take it or leave it’ will strengthen their negotiating hand in negotiations with the EU. But this is fundamentally incompatible with parliamentarians’ duty to make informed decisions in the national interest – especially two years from now, when the proposed terms of a future deal with the EU are known, or there is no deal on the table.
Second, Parliamentary oversight and responsibility for the ultimate decision on withdrawal can and should be embedded in the Bill before it becomes law. It will then be put beyond doubt that the ultimate decision on withdrawal will remain with Parliament. There needs to be an amendment made like the one we originally proposed or NC99. We want to build on the support many MPs showed for such an amendment as the Bill reaches the Lords. The House of Lords can make such an amendment.
To help peers stand up to the Government, we and the People’s Challenge legal team have a five step plan:
publishing and distributing the ‘Three Knights' Opinion’ - we have commissioned authoritative written legal advice on the UK’s future options from the most senior and well-respected EU and constitutional experts available. The opinion explains why embedding parliamentary sovereignty in the Bill matters, and how that can be done;
providing direct in-person and telephone briefings for key peers;
drafting work on amendments in the Lords;
preparing written debate briefings and print copies of our plain English fundamental rights booklet for active peers; and
liaising with other like-minded campaigning organisations so we can maximise the impact of our message on peers.
The battle for parliamentary sovereignty has been far from easy. The battle for parliamentary sovereignty that makes a real difference to the EU withdrawal process is proving harder still.
This is why we hope we can count on your continued support for the Second People’s Challenge and ask that you consider donating now to support the further work for our legal team outlined above, and expenses such as postage to peers, and booklet print costs.
The work undertaken immediately after the Supreme Court’s judgment and throughout the House of Commons stages has used up the money raised so far. The members of the People’s Challenge group itself, of course, are not paid for any of their time. Our legal team continues to charge concessionary fees lower than those of the Government’s lawyers.
But we do need your support to press on at this critical time.
Over to the Lords
This update takes stock of where we now stand and what can be done in the House of Lords. A further update to be posted shortly will set out the People’s Challenge action plan to support peers who want to fight for parliamentary sovereignty and to protect ordinary UK citizens' rights.
The Commons debates of the European Union (Notification of Withdrawal) Bill are finished for now. The Bill will be formally presented to the House of Lords on 20 February and debated there. If the Lords make amendments, the Bill will then be returned to the Commons for them to be debated. Details of the amendment process are here.
For us and many People’s Challenge supporters, the debates so far have been an intensely frustrating experience. The Bill passed through the Commons without any amendments being made at the committee stage, although many were put to a vote including NC110 (which was similar to NC99, the amendment we were encouraging MPs to back).
Several MPs made points based on the debate briefings we had prepared for them. NC99 was debated and a number of MPs spoke in favour of it, but it was not put to a vote after NC110 was voted down. Other important amendments, such as NC146 (the call for regularisation of the position of EU nationals resident in the UK) also failed to attract enough political support.
The ‘consolation prizes’ from the Commons stage were:
First, the White Paper - this describes the Government’s high-level negotiating objectives and aspirations. It also states that, once negotiations are concluded “[t]he Government will then put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament” (paragraph 1.12). But that vote will have no legal significance. The White Paper says nothing about what will happen if Parliament votes against what is proposed. Worse still, it is silent on what happens if no ‘deal’ can be agreed with the remaining EU states. It appears that few or no contingency plans have been made for that eventuality, just as none were made before the Referendum vote for a ‘leave’ majority.
Secondly, on 7 February 2017, the Minister for Exiting the EU, Mr David Jones, informed the House that “we intend that the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union. Furthermore, I can confirm that the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded. We expect and intend that this will happen before the European Parliament debates and votes on the final agreement” (see Col. 264 of Hansard).Some have pointed out that ministers’ ‘expectations and intentions’ are not guarantees. Even if they are fulfilled, it would still mean Parliament having no statutory control over what would happen following the resolutions. Parliament would have neither power nor responsibility. That would have been surrendered by the Bill being passed in its current form.
So neither of these assurances are a meaningful substitute for what we have been fighting for - Parliamentary oversight and ultimate responsibility for decision-making once the proposed Brexit deal is known – or it becomes apparent that no deal can be struck. That is the only way Parliament can make an informed decision on what should happen to the fundamental rights of millions of UK nationals.
We still believe that oversight and responsibility must be incorporated into in the Bill before it becomes law. There needs to be an amendment made, like that we originally proposed or NC99.
Securing that sort of amendment is still possible. The concerns that were expressed in the Commons debate are grave enough for members of the House of Lords to take notice – and several have already been in touch with our legal team about them.
We are not willing to give up on Parliament.
A Lords amendment, with strong backing, could still be made to the Bill and maintained in the Commons. Voting on amendments like NC110 shows that many MPs still care and are willing to stand up for Parliamentary Sovereignty. These MPs come from parties right across the political spectrum. NC99 and NC110 were backed by Conservatives, Labour, Liberal Democrats, and the Green Party MP, Caroline Lucas. We want to build on this in the Lords.
Our next Second People’s Challenge update will explain how.
Parliament debates its future role in the withdrawal process
Yesterday we made sure every MP received a copy of our latest briefing on NC99 and plain English guide to fundamental EU citizenship rights.
The parliamentary sovereignty issues the raise, in particular what happens if there is no deal or Parliament rejects the deal, are being debated in the House of Commons right now and can be watched here http://parliamentlive.tv/Event/Index/23973de5-94a8-4d07-ae4e-9956dd20219f (the debate starts from around 14.40hrs onwards).
The Minister has made this concession in the House this afternoon:
“We intend that the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union. Furthermore I can confirm that the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament, before its concluded and we expect and intend that this will happen before the European Parliament debates and votes on the final agreement”
Also, in response to interventions said this:
“If there were no agreement at all…ultimately it will be falling back on WTO arrangements…
In the absence of any agreement whatever, that absence of agreement would be the subject of statements to this House…
The vote will be either to accept the deal that the Government have negotiated… or no deal, and frankly that is the choice that this House will have to take.”
It is now clear that the only choice envisaged by the Government will be ‘take the deal we have negotiated or leave without a deal’. A number of MPs are, unsurprisingly, making the point that this is not satisfactory. Alex Salmond has said that this Government concession should be included in a formal amendment and that the House of Lords should seek to do that. Dominic Grieve has made it clear that there is a real problem about the timing of the agreement, but has questioned whether an amendment can be crafted to meet that.
Whether NC99 will be put to a vote and, if so, who will support it remains to be seen. It cannot be passed without Conservative support in the Commons, but if that does not happen, there will still be an opportunity for the Lords to agree to an amendment embedding similar safeguards.
Taking urgent action during the EU withdrawal Bill’s committee stage
Parliament is now debating amendments to the European Union (Notification of Withdrawal) Bill during its committee stage which will last until late on Wednesday. It is all too easy to get lost in the detail and the rhetoric. Now more then ever, it is critical that MPs focus on what’s at stake for millions of UK nationals, why it’s so important and what can be done to protect them.
As to what’s at stake, the People’s Challenge has produced this plain English booklet highlighting the fundamental citizenship rights that MPs must take action now to protect.
As to the action that MPs can take right now, our legal team has produced a new briefing on NC99, which is by far the most important proposed amendment to the Bill. As discussed in earlier updates, NC99 is vital to preserving parliamentary sovereignty during Brexit. It is important that MPs seriously consider backing it so that final decisions on the changes to our laws and the rights they give UK nationals remain Parliament’s responsibility.
Parliamentarians need to stand up for their right to have a final, meaningful say on whether what ends up being agreed between the Government and other EU states is acceptable or, if there is no agreement, what should happen then. Without that final say which NC99 makes possible, the parliamentary sovereignty defended in the Miller case could become meaningless. The new briefing also explains why neither the Brexit White Paper nor the Constitutional Reform and Governance Act 2010 deal with the parliamentary sovereignty problem that the Bill creates.
We and the legal team have been hard at work speaking with and writing to key MPs to stress these points.
We will also ensure the booklet and briefing reach as many MPs as possible today, but you can take action yourself right now using these tools.
In particular, you can:
What’s next in Parliament, for the People’s Challenge and its supporters?
Since the last update,both the People’s Challenge group and members of our legal team have been hard at work briefing MPs on how Parliament can take back meaningful control of the Art 50 process, in particular by amending the European Union (Notification of Withdrawal) Bill so that Parliament will see the terms of the withdrawal agreement, if one is reached with the EU, and have a genuine opportunity to decide whether it is accept able and in the national interest. As we have explained before, just putting the agreement to a vote in both Houses is not meaningful Parliamentary control; only an Act will do. This is a simple message MPs should be receptive to - and many are - even if they are inclined to vote in favour of the Bill. If Parliament is not guaranteed a genuine decision on any withdrawal agreement, our own MPs will have less say over its terms than MEP of any other EU country because such agreements must be approved by the European Parliament.
Parliament is now partway through its debate the second House of Commons reading of the Bill. A vote will be taken this evening on at least one ‘reasoned amendment’,followed almost certainly by a vote on the Bill. It is overwhelmingly likely that it will not be thrown out at second reading stage because, for that to happen, there would need to be a significant rebellion by Conservative and Labour MPs. The Bill will move forward to three days of ‘committee stage’ debate next week. More about the Parliamentary timetable can be found here and here.
Can positive changes be made to the Bill at committee stage?
In theory, yes, but amendments would need to attract cross party support to stand any chance of being passed either as a result of the vote or a Government concession. Dozens of amendments have been tabled, many of which stand no prospect at all of being passed or making a real difference even if they were. The very limited Parliamentary time allowed for the Bill means that most will not even be selected for a debate.
The amendment our legal team prepared with a view to maximising Parliamentary Sovereignty throughout the Article 50 process has so far not been tabled by MPs, but there are four other ‘new clause’ amendments intended to preserve the role of Parliament and provide for meaningful scrutiny of the terms of withdrawal from the EU - NC19, 99, 110 and 137.
The team has urgently reviewed them and had further discussions with MPs. They have concluded that NC99 would help embed the principle of Parliamentary sovereignty within the Article 50 process and MPs should be encouraged to back it. Here is a note explaining why in more detail.
In short, NC99 takes a different, and stronger, form than the other amendments that have been tabled. Though the wording is different, like the draft People’s Challenge amendment, it requires that there must be another Act of Parliament down the line approving either:
the arrangements for withdrawal and the future relationship between the United Kingdom, as agreedbetween the UK and EU; or
the UK’s withdrawal without an agreement being reached between the UK and the EU.
embeds the future role of Parliament as a UK “constitutional requirement” - the EU would be bound to respect this, under Article 50 (it says “[a]ny Member State may decide to withdraw from the Union in accordance with its own constitutional requirements” );
it is the equivalent of the vote given to the European Parliament at the end of the Article 50 process on the EU side;
requires an Act of Parliament, not a mere ‘resolution’ - the Supreme Court made it clear in Miller that an Act of Parliament is needed to make as fundamental a change in the law as will happen following Brexit;
it expressly deals with the possibility that there is no agreement between the EU and UK within the negotiating period; and
clearly asserts the national sovereignty of the UK itself, in the form of the Queen in Parliament, to decide when, and on what terms, the UK will leave the EU. It doesn’t require any cooperation or consent on the part of the European Council, and doesn’t require HMG to go back and beg for more time etc. It genuinely gives Parliament the final say.
NC99 already has the backing of several MPs and rather than press for a competing, similar amendment to be tabled, we think it would be better for other MPs to support it at this time. The team will discuss the legal implications of NC99 with its supporters and send the briefing note they have prepared.
It will be very difficult to get NC99 or any other amendment passed in the Commons, but it is important to try because there is a chance, the stakes are so high and if the issue of Parliamentary sovereignty throughout the process is seriously debated in the Commons, that will increase the prospects of the House of Lords taking interest and proposing amendments itself.
What can you do now?
Although NC 99 is not our amendment and we would use different wording, it is worth backing. Please consider urgently contacting your MP by post, e mail or, best of all in person, giving them our team’s note on NC99, and asking then to consider supporting it. You might want to say:
why you supported the People’s Challenge their reasons for supporting the People’s Challenge;
why you believe that Parliament needs to stay in control throughout the Article 50 process,especially given the rights at stake; an
why an Act of Parliament is needed down the line when the proposed withdrawal agreement is known, or it becomes clear there will be no agreement) so Parliament remains in control; and
why NC99 helps.
You can find your MP’s contact details here.
If you want to act, it is really important to do so now so your MP takes account of your views before committee stage next week.
Meanwhile, we will be pressing on with preparation of the booklet for MPs and peers about what is at stake and with further legal advice on maximising Parliamentary sovereignty.
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.
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!
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