The past two years very much resemble the curate’s egg.

On the one hand there has been blind adherence to a non-existent plan, which has resulted in a deal between Theresa May and the EU that virtually nobody in the UK wants, and it seems that nobody in the EU really wants it either.

On the other hand, there have been two momentous legal decisions.

The first was when the government was defeated in the Supreme Court over its intention to use the Royal Prerogative to Trigger Article 50, and the second when the Court of Justice of the EU agreed that the UK can unilaterally withdraw the Article 50 notification.

Both of these decisions are connected by a long legal thread, starting with our successful Article 50 challenge, running through The Three Knights Opinion which in turn underpinned the successful question to the CJEU by Andy Wightman and his colleagues. It is a legal thread that has been funded in large part by your contributions and support for our fundraising campaigns.

Neither of these challenges has stopped Brexit, but nobody said they would. Indeed, no legal challenge can of itself stop Brexit. But they have been the only ones to pull the government up short and restrain its autocratic deceit.

In doing so, they provided our parliamentarians with tools to help them force through a meaningful vote on the results of Theresa May’s shambolic and damaging negotiations, and gave hope that the outcome will be something that doesn’t damage our and our country’s future for decades to come.

You have also helped us fund another significant piece of legal work, The Millions in the Margins. This document highlights the ways in which the draft Withdrawal Agreement between the UK and the EU is not only discriminatory but seriously deficient in protections provided to UK citizens at home and overseas.

 Although Theresa May’s deal is being touted as the end of the process, this is not so. The only way that Brexit will finish on 29^th March 2019 is if the UK continues as a member of the EU.

Theresa May’s deal does nothing more than kick the can down the road yet again, with the distinct possibility of a no-deal exit from the EU on 31^st December 2020.

Even a no-deal exit will not finish the Brexit process. Does anybody seriously believe the UK can walk away from the EU and not have treaties and agreements with our closest neighbours covering trade, security, defence co-operation…? Even the most myopic of the unicorn hunters don’t think that.

Fortunately, Parliament as a whole seems disinclined to believe in the myths of unicorns and rainbows spouted by Theresa May, added and abetted by Jeremy Corbyn and the brexiters.

There is still much work to be done, persuading and informing MPs on what we think and preparing for a possible People’s Vote by encouraging people to ensure they are registered to vote. There may even be new legal challenges, depending on the course things take over the coming weeks.

We send out supporters’ e-mails via Crowd Justice when we can, but as we are not currently running a Crowd Justice campaign that doesn’t always happen as quickly or punctually as events dictate.

You can also follow us via our Blog, Facebook page, or Twitter @PeoplesChalleng .

Many thanks, once again, for your support, we hope you had a good Christmas/New Year and let’s see what we can do to make 2019 A Very Good Year.

It’s no good harking back…

Were we told that our country would be better off outside the EU, that we could establish a new world position at the drop of a hat, that we could write our own ticket to exit the EU? Yes to all.

Was this all moonshine, is it all in the past, do we need to move on? Yes to all.

We need to channel our inner Dr Phil and say something like, “It is what it is, and the only time is now.”

There may have been lies, misdemeanours and (maybe) misunderstandings, but the important thing is what to do NOW.

Here are some suggestions:

Now we (kind of) know what leaving the EU means, even if it’s so complicated that no one (truly no one) understands all the ins and outs, we should consider the consequences for us, our workmates, families, friends and neighbours, and the economy, prospects and future of our country;

We should inform and support our MPs – that means tell them our views, and that we rely on them to do what is best for our country;

Political circumstances have put our Parliament in an almost impossible situation, so we should press for another referendum – if the last one was democratic, why wouldn’t another one be equally so? TM’s snap election last year apparently wasn’t undemocratic, so what’s the difference?

We should do all we can to make sure that everyone eligible to vote is properly registered to do so where they now live. This may be particularly important for younger people who are more likely to have relocated in the last couple of years. Perhaps you could contact your local schools, colleges, universities, employment agencies to alert people to the necessity for registration?

But just as importantly, we really shouldn’t hark back. Who did what, for what reason, in 2016 in relation to the referendum is HISTORY. Anybody reading this now has over 2 years more experience and information to draw on. As the old saying goes, it’s not where we came from, but where we’re going, that counts.

This issue has been so very deeply divisive. Building bridges is important, or at least not making the canyons any wider. What’s imperative is that we work together to get the best outcome for our country.

You can find this article and others on our blog: https://thepeopleschallenge.org/2018/12/31/brexit-its-no-good-harking-back-what-is-best-for-our-country-now/

Theresa May’s government is actually verbally bankrupt, as well as morally bankrupt and much shorter of the readies than it needed to be.

We’re getting the usual stuff about what they’re “very clear about” (yawn), but there’s nothing new, nothing real.

So what are they doing? They’re trying to talk about their opponents in a derogatory fashion, so as to draw attention away from their own disarray.

Jeremy Corbyn said in Parliament that Theresa May was a “silly woman”, did he? According to lip-reading experts, he didn’t (though it would have been hard to disagree with him). Apparently, what he said was that the Conservatives opposite were “silly people”. Nobody disputes the “silly” bit, it would appear. The accusations about reducing proceedings to pantomime are equally hard to refute.

But trying to get us to think that Jeremy Corbyn insulted Theresa May personally is good distraction … look, bright and shiny!

Amber Rudd also pitched in about how she doesn’t like European-style hugs. I understand that Ms Rudd is (according to the credits in “Four Weddings…”) an authority on proper behaviour in UK posh circles, but she clearly doesn’t understand social behaviour in Europe.

Nor, it would appear, has she taken advice. Hell, even I could have told her, and I’m no expert. Here’s what you do to avoid hugs: you hold out your right hand and proffer your cheek, then the other one - for the avoidance of doubt, those on your face. This will signal “no hugging”. You can still appear pleased to meet someone if you do the cheek-kissing properly.

But there’s no news in taking advice and being prepared, is there? Well, the Brexit proceedings had already told us that!

Lyn Pigney

As we traverse the winter solstice and head toward the Christmas/New Year break, we can spot Jeremy Corbyn and Theresa May out together, hunting for rainbows and unicorns.

It has long been know that Theresa May is an enthusiastic participant in this mythical sport, but views on Jeremy Corbyn’s participation have until now been largely speculation, based on observations of him indulging in fence-sitting rather than fence-jumping.

They are both after a super-unicorn – an 11^th hour capture somewhere in the vicinity of Brussels.

Of course, the more rational among us do actually know that unicorns exist only in myth, and have certainly not been seen around Brussels, or indeed anywhere else in the known world, since time immemorial.

While Theresa May and Jeremy Corbyn indulge their Walter Mitty fantasies, others that they represent are faced with the reality of much more meagre fare, this Christmas and for a long time to come.

This holiday season there is both more and less optimism than there was this time last year.

Reasonable people know quite clearly what is Best for Our Country despite the undemocratic and dogmatic statements that Theresa May and Jeremy Corbyn spout in a manner reminiscent of 1930s dictators.

We hope and believe that wiser council will prevail and the UK will not be dragged down a path that compromises its heritage, principles and democracy.

Time for us all to draw breath, close the doors on the world for a few days and enjoy the festive season, very best wishes from all of us.

You can find this article and others on our blog: https://thepeopleschallenge.org/2018/12/23/in-the-deep-mid-winter-jeremy-corbyn-joins-theresa-may-hunting-unicorns-and-rainbows/

There has been a lot of talk about Labour forcing a Commons vote of no-confidence.

The no-confidence motion that Jeremey Corbyn has tabled is largely symbolic. The government doesn’t have to provide time for it to be debated and the motion won’t, of itself, trigger a General Election or force Theresa May to resign.

If it is debated and passes, Theresa May’s authority will be reduced, but as her authority already seems to be around zero, will that make any difference?

Tabling a vote of no-confidence in the government is another thing.

However, what that has meant since 2011, when the Fixed Term Parliament Act received Royal Assent, is very different to what it meant in the past.

The Fixed Term Parliament Act was introduced to provide a more stable parliamentary environment for a coalition government. As a consequence it also protects a minority government. It also removed the prerogative that the Monarch had, on advice from the Prime Minister, to dissolve Parliament and call a General Election.

The no-confidence procedure was significantly modified by the introduction of the FTP Act:

A vote of no-confidence in the government, using the form of words prescribed in the FTP Act, has to be passed;

If a confidence motion, again using a prescribed form of words, has not been passed within 14 days of the no-confidence vote, Parliament is dissolved and a General Election is called.

What does the Fixed Term Parliament Act say must happen after the no-confidence vote and ahead of a confidence vote held in following 14 days?

The House of Commons Public Admin & Constitutional Affairs Committee says it is not defined.

The Act provides no guidance on what happens during the 14-day period following a FTP Act no-confidence motion being passed. The Clerk of the House says that what happens during this period is a matter of politics, and not of procedure.

The 14 days allow time for confidence in the government to be re-established. Whether through a change in personnel, policy or party is a matter for the political process.

It is possible that the DUP and/or the ERG could vote against the government in the no-confidence vote and then, having extracted commitments from the government, support the government in the confidence vote.

So it doesn’t look as if a Commons no-confidence vote will unlock the door to No 10 in the short term.

A People’s Vote on what is Best for Our Country may well be the surest way to secure those elusive keys.

You can find the full version of this article on our blog: https://thepeopleschallenge.org/2018/12/18/a-vote-of-no-confidence-in-the-government-is-not-as-simple-as-it-sounds/

In her speech on 9th January 2017, i.e. nearly 2 years ago, at the Charity Commission annual meeting, the Prime Minister promised that her government would have a "comprehensive, wide-ranging plan" to split from the EU.

"A plan to build a country where wealth and opportunity are shared; where all of us, no matter what our background, play by the same rules; and where future generations enjoy the same opportunities from which their parents have benefited throughout their lives."

"I will say more about this plan in the coming weeks. I will talk more about our plans for economic reform, our plans to build a Global Britain and our ambitions to build a more united country."

OMG, how time has eroded these statements – I can hear Prof Brian Cox explaining entropy!

From the top:

"comprehensive, wide-ranging plan" is now clearly risible. There was no plan at all, and the sorry result is not her government’s plan but Theresa May’s so-called solution – an attempt to placate all camps in her party. This has not attracted support from anyone except loyal Tories supporting the party (literally at any cost) and those who value their political careers more than the good of the country;

"A plan to build a country where wealth and opportunity are shared…” now looks more like “we’re all poorer (cost of living, sorry state of the exchange rate of the pound, inflation…) and our shared opportunities have diminished even before Brexit has actually happened (businesses and financial markets closing down or moving away from the UK, even food crops rotting in UK fields)”;

“…where all of us, no matter what our background, play by the same rules…” - one word, “Windrush”;

“…where future generations enjoy the same opportunities from which their parents have benefited throughout their lives.” How long have you got? Loss of freedom of movement, uncertainty about UK citizens’ business interests and property in EU27 countries, recognition of UK professional qualifications in the EU27, ease of working (whether temporarily or permanently) in the EU27, threat to easy accumulation of pension rights acquired throughout the EU27…

"I will say more about this plan in the coming weeks.” No! Over time, less and less has been said about this Utopian fantasy. For good reason: because that’s exactly what it was. UK citizens were being promised something that was undeliverable, and we now have a clear idea of what the outcome of the “plan” would be – more dystopian than Utopian.

How much worse it is, even at its best, than EU membership. It would cost dearly, leave us subject to many rules but with no voice in the decision-making process, abdicating our key role in the development and future of Europe. And for what?

Brexit, before it’s even happened, has dealt body blows to our beleaguered NHS, farmers who grow our food, people whose work it is to keep us safe, employment prospects all over the country as well as losing us institutions and organisations that contribute to our national prestige (EU Youth Orchestra, EU drug approval body…).

“…our ambitions to build a more united country." Even when she said this, it was clear that Brexit was dividing the country, not uniting it.

The situation for Scotland (which clearly voted to remain, and had been made promises at the time of its own independence referendum about what continued membership of the UK would mean), for Northern Ireland (where a peace achieved after centuries of conflict and bloodshed is now threatened by the let’s-try-to-placate-everyone “solution” being proposed), and even for friends, neighbours and families divided on the issue – all these show the “ambitions” as the hogwash they are.

And then of course there are the EU27 citizens, who in fact are net contributors to the UK economy and have skills we are already missing, who are leaving the UK because they’re being made to feel unwelcome.

Plus there are the UK citizens who live in Gibraltar, of course. The situation with Spain has been delicate for decades, and they have been sold down the river because their circumstances just don’t fit in with the “plan”.

This also applies to any number of other UK citizens (no one knows how many), whether with personal or business interests in the EU27, resident there or with plans to be so. There are many ramifications to their situations which are just too varied and inconvenient for the negotiators on either side to deal with. These people are going to be losing rights without even the courtesy of this being acknowledged.

In 2016, nobody warned that it would be like this. Leaving the EU was supposed to be as easy as pie, new trade deals in a heartbeat, the whole of the rest of the world at the UK’s feet…

What’s being offered is nothing like what people voted for in 2016. And as TM herself is so fond of saying, “I want to be very clear about this”: it is an offer. We do not have to accept it. It’s now time to have a vote on what’s on offer… or not on offer. And the options to be voted on must be based on What is Best for Our Country a question which must include an option to continue to be a member of the EU.

You can also find this article with links on our blog: https://thepeopleschallenge.org/2018/12/17/theresa-mays-rainbows-and-unicorns/

Almost exactly a year ago the germ of an idea started to develop at The People’s Challenge, based on the High Court decision in the Miller case and the work our legal team had done for the Supreme Court defence against the Government’s appeal.

If Parliament had to authorise the Article 50 notification of intention to leave the EU, wouldn’t they also have to make a decision to authorise leaving the EU once the terms were known? We sketched an outline of our thoughts and asked John Halford at Bindmans LLP to explore it from a legal standpoint.

During January the legal team started shaping the arguments based on the question. By the time the Supreme Court handed down its decision in the Miller case, we had a clearer idea of what was required.

By the time the EU (Notification of Withdrawal) Bill was published at the end of January, the legal team was sufficiently confident on the issues for us to produce briefing documents for MPs and Peers about the requirement for an Act of Parliament once the terms were known.

We continued this work during the progress of the EU (NoW) Bill through Parliament.

In parallel, what was now known as the Three Knights Opinion was being finalised and was ready to be published in mid-February.

Our final briefings to Peers and MPs included the published Three Knights Opinion.

As we know, the EU (NoW) Bill eventually went through in a very brief form and received its Royal Assent on 16^th March 2017.

It was clear to us that there would, in all probability, have to be a reference to the CJEU at some point to get a definitive answer on the question of unilateral revocability of the Article 50 notification. The primary reason for this was that it was essential for Parliament and the public to understand what the options were, when it was time to decide whether the withdrawal terms were acceptable or not.

With the legal team, we considered the possibility of mounting a campaign ourselves. It was clear that we were not the people best placed to initiate such a claim, as we may well not have been able to get past the permissions stage. As ever there was also the question of timing.

Our view was that parliamentarians, particularly Westminster MPs, would be best placed to bring such a challenge as they would ultimately have to decide what course to take when the terms of the withdrawn agreement were known.

Nevertheless, we were ready to intervene or assist if we could add to an eventual challenge and offered to do so where it seemed appropriate.

The challenge by Andy Wightman & others was the first that looked as if it had serious “legs” and even so they had a long struggle to get the Court of Session to refer the question to the CJEU.

Also Chris Leslie MP and Tom Brake MP decided to intervene in the case, increasing the number of Westminster MPs. Just as importantly, John Halford at Bindmans and Gerry Facena QC, one of our QCs in the Miller case and a co-author of the Three Knights Opinion, agreed to act for them.

We have already commented on the hearing at the CJEU in Luxembourg and the Opinion written by the Avocat General assigned to the case.

The CJEU’s ruling justifies not only the Opinion written by Sir David Edward QC, Sir Francis Jacobs QC, Sir Jeremy Lever QC and the QCs that acted for us in R (Miller) vs SSExEU, Helen Mountfield QC and Gerry Facenna QC, but also the initiative started nearly a year ago with the support of our backers.

Today’s ruling is not only crucial in the campaign for our Parliament to take back control from an increasingly authoritarian government, it is a stunning example of perseverance and the power that people have when they believe in what they’re championing and work together.

Congratulations and thanks to the named individuals in the case, whether claimants or interveners:

Andy Wightman MSP, Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP, Jolyon Maugham QC, Joanna Cherry QC MP and Chris Leslie MP, Tom Brake MP;

the two legal teams and above all the thousands of people who helped fund this long journey and make the result possible.

BTW, we are asked from time to time why this wasn’t resolved during the Miller case.

During the hearings in the Miller case, the Government had asserted that once they had triggered Article 50 there was no going back. It was an assertion we were quite prepared to go along with, as it strengthened the arguments in favour of ensuring Parliamentary sovereignty.

Note 1. Court of Justice of the European Union.

The Court of Justice of the European Union (CJEU) has one judge from each Member State, assisted by eleven advocates general whose role is to consider the written and oral submissions to the court in every case that raises a new point of law, and deliver an impartial opinion to the court on the legal solution. Although Advocates General are full members of the court, they do not take part in the court‘s deliberations, and the Advocate General’s opinion is not binding on the court.

Although the court reaches the same solution as the Advocate General more often than not, it cannot usually be stated that the advocate general’s opinion has been ‘followed’ in any given case, because the court may have reached the same conclusion via different legal reasoning. The role of Advocate General is created by Article 19(2) of the Treaty on European Union and Articles 253 and 254 of the Treaty on the Functioning of the European Union.

Note 2. The Three Knights Opinion.

The Three Knights Opinion was commissioned by The Peoples Challenge after successfully resisting the Government’s attempt to use Royal Prerogative to trigger the Article 50 notification.

The Opinion’s authors are Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC (retired) and the QCs that acted for the People’s Challenge Group in R (Miller) vs SSExEU, Helen Mountfield QC and Gerry Facenna QC.

Sir David Edward QC practised at the Bar in Scotland prior to his appointment as the United Kingdom’s Judge at the European Court of First Instance from 1989-1992 and subsequently Judge of the European Court of Justice from 1992 until 2004. In 2004 he returned to become a part-time judge of the Court of Session in Scotland. He is a Privy Councillor, Professor Emeritus at the University of Edinburgh and an Honorary Fellow of University College, Oxford.

Sir Francis Jacobs QC served as the United Kingdom’s Advocate General at the European Court of Justice from 1988 to 2006, having previously combined an academic career as Professor of European Law at the University of London with practice at the Bar. He is the President of the Centre of European Law at King’s College London and a visiting professor at the College of Europe. He was appointed a Privy Councillor in December 2005 and continues to practice at the Bar.

Sir Jeremy Lever QC is one of the most senior and respected figures in EU and competition law. 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 on behalf of the UK Government, the European Commission and the European Parliament. He is a Distinguished Fellow and Senior Dean of All Souls College, Oxford and in 2003 was knighted for services to European Law.

Note 3. Supreme Court decision in R (Miller) vs SSExEU

The People’s Challenge played a significant part in the arguments in the Divisional and Supreme Courts which resulted in the ruling that the Government was not allowed to trigger the Article 50 notification using Royal Prerogative and it required primary legislation by Parliament because of the implications for UK citizen’s fundamental rights.

I have been asked whether the work we are doing isn’t duplicating the “Amsterdam” challenge and the questions being asked of the CJEU.

In fact the two issues are separate and reasonably distinct and both, for their own reasons, deserve to be supported and followed through.

The Amsterdam challenge is based in what has been called the “stone-by-stone” approach that the CJEU follows when making decisions and establishing the jurisprudence of EU law.

In this case the stones are a series of CJEU rulings relating to the right of individuals to their EU citizenship rights under circumstances where individual member states had sought to remove or ignore those rights.

The Amsterdam challenge is seeking to add another “stone” to the process and asking the CJEU to declare that EU citizenship rights are personal and individual and as such cannot be removed because your country of nationality decides to leave the EU. The CJEU is also being asked what, if any, criteria apply to the retention of EU citizenship rights under such circumstances.

The work we are doing is focused on the arbitrary and possibly discriminatory framework being used by the EU and the UK to protect what they define as EU citizenship rights for the purposes of the exit negotiations.

Broadly speaking the EU and the UK have decided that EU citizenship rights have only been exercised, and therefore need protecting, in the situation where an EU citizen is currently resident in an EU country other than his/her country of nationality.

This is plainly a nonsense as there are many ways of making significant personal, family and financial decisions based on EU citizenship rights which do not involve being resident in another EU member state at the time of making the decision or perhaps at all.

Equally nonsensically the individual may well have been resident in another EU state at some time in the past, the fact that they are currently not resident in that state, or any other of the states, does not in some way “un-exercise” those rights.

We are looking at the various courses of action open to individuals and groups of individuals in a wider context than just EU law and in a wider context than just the British nationals currently living in EU27 countries.

We also want to be able to present this researched and documented legal advice to MPs, MEPs and members of the UK devolved assemblies. Ultimately it is these representatives of ours who need to be fully informed of what is happening so that they can make the appropriate decisions.

Both sets of work are important, perhaps even crucial, for the reasonable and equitable treatment of all EU citizens, including British nationals at home or in EU27 countries, at a time when governments and administrations are seemingly focused on simplistic and expedient solutions.

Contrary to what the Government would like us to believe, we are faced with a complex, multi-facetted problem.

A problem which is open to multiple solutions and it will require a number of the best of those solutions in order to find the answer that is the best interest of Britain and its people.

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Our aim is to help people see what’s going on, understand what they are, or aren’t, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.

To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

Ensuring the rule of law and the protection of people’s fundamental citizenship rights are key elements of our challenge.

They go back to the very first action we took when we initiated a challenge to the UK government’s intention to illegally use the Royal Prerogative to trigger the Article 50 notice.

The arguments we put forward in court about fundamental citizenship rights were decisive in winning that case; indeed some involved in the case have said the government would have won the case if we had not put those arguments forward.

We originally launched our current GoFundMe campaign in order to do two things: raise money to sustain the campaign work and relieve the financial burden on the 2-3 people who previously shouldered it, we also needed funds in order to update some of our previously-published material and re-examine the opportunities for further challenges in the light of the on-going exit negotiations.

The questions of people’s fundamental rights and the observance of the rule of law are now coming into sharp focus again.

At this time the negotiations are still extremely vague and it is still unclear who will be protected under the final agreement.

It is even less clear who should be protected by law from the fallout of a politically expedient set of negotiations.

The EU and the UK are treating EU citizenship rights as something that is only triggered by a single event: you move to a country and stay there, like transplanting a tree. We are not trees.

The reality of the situation is that EU citizenship rights are embodied in a variety of laws and regulations that enable an individual to live, study, work, retire in any of the EU member states. Exercising these citizenship rights can happen in a singular, discrete moment or they can be exercised as part of an ongoing event or events. Entitlement to these citizenship rights is in no way predicated on residing in an EU state other than your country of nationality.

It is unlikely that all EU citizenship rights can be preserved for all UK citizens; there is only one way that can be done with certainty. On the other hand it is clear that both the UK and the EU have opted for an arbitrary and simplistic scenario as a basis for the agreement on citizenship rights.

We have discussed this with our legal team led by John Halford and feel that The People’s Challenge can make a significant contribution to casting light on these issues, as indicated in previous posts.

Therefore we’ve put together an expert team to advise on who should be protected by the draft citizens’ agreement but have been left out of it, and the deficiencies in the protections being proposed for those groups covered by the draft.

We will then publish two documents – one for those groups of people who have reasonable prospects of being able to protect some or all of their EU citizenship rights through some form of legal challenge, and another document for those who have been left behind with seemingly little or no practical legal recourse.

And so now we have raised the limit for our campaign in order to fund work which will be undertaken by a team of legal experts led by John Halford.

This work affects millions of people. As well as publishing this material we will use it to inform and lobby MPs, MEPs and the members of the UK devolved assemblies on the deficiencies in the current draft agreement on protecting EU citizenship rights.

The era of governments being unaccountable for their actions is long gone and we need your help to again remind our political representatives of this.

If you care about the fundamental rights that Brexit puts in jeopardy, and the need for Parliament to safeguard them effectively, please help us to maintain our campaign and continue to stand up for you.

We need your support, please share and donate.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

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We value your support. If you share our concerns about the work needed to promote the outcome which is in the best interests of the UK, please consider making a donation by clicking on the Gold Card image.

Our aim is to help people see what's going on, understand what they are, or aren't, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
 
 To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

It’s 18 months since we initiated the challenge to the Government over its intention to bypass Parliament and use the ancient Royal Prerogative to trigger Article 50.

This was the start of a fight to ensure that it is Parliament that decides where the future of the UK lies and not a handful of people in Whitehall.

In less than a fortnight it will be the first anniversary of the UK’s Supreme Court upholding our challenge by saying that it was for Parliament to decide and the Government could not use Royal Prerogative to trigger Article 50.

At the same time as the Supreme Court did this we commissioned the “Three Knights Opinion”, the most authoritative opinion yet on the revocability of the Article 50 notification, which takes into account both UK and EU law.

The Three Knights’ assertion that Article 50 is unilaterally revocable is supported by the opinions of both Lord Kerr, one of the authors of Article 50, and Jean-Claude Piris, Legal Counsel to the EU Council, Director of its Legal Services from 1988 to 2010 and also Legal Advisor to the inter-governmental conference which negotiated the Treaty of Lisbon of which Article 50 is a part.

The question of the revocability of Article 50, the EU law element of it at least, is now to be tested in the courts. A group of Scottish parliamentarians have asked the Court of Session in Edinburgh to refer the question to the Court of Justice of the European Union.

Obviously we, with our legal team, are keeping a close watch on this challenge, if we feel that we can contribute to the challenge, and by doing so improve the chances of the challenge being successful, we will apply to be a participant.

The other work that has occupied a great deal of our time, and money, over the past year has been working with other groups to inform people and politicians of the absolute necessity to ensure that decisions are made based on “What is Best for the UK” rather than some dogmatic philosophy of “Brexit is Brexit”.

From the very start of our campaign 18 months ago, a fundamental principle has been “What is in the best interest of the UK?”

That is why we have to ensure that Parliament makes these decisions: MPs and members of the House of Lords have a sworn duty to act in the national and public interest.

While the referendum result said, by a miniscule margin, that more UK citizens who voted preferred to leave the EU than to remain, the decisions about what happens next have not been made by the public or their representatives in Parliament.

Indeed, it seems as if not even the Cabinet has made these decisions.

What has happened is in-fighting within the Government, in-fighting which sadly seems to have more to do with personal political advancement than what is best for the UK.

This has produced an inconclusive and ill-defined position based on anodyne soundbites, as the Government seeks to take the UK out of the EU without Parliament ever making the decision on what is best for the future of the UK and its people.

But our Sovereign Parliament has demonstrated that this is not acceptable behaviour by the Government.

The unprecedented number of amendments tabled to the EU (Withdrawal) Bill, which brought on the first Government defeat when the Dominic Grieve’s amendment 7 was passed, shows that Parliament is not prepared to see the Government annexe wide-ranging powers to take further action without Parliament’s approval (i.e. the passing of an Act of Parliament). And the debate over amendments isn’t finished yet!

MPs’ sworn duty is to act in the best interest of the UK, also taking account of the views of their constituents. Making them aware of the feeling in the country is vital. This is a major objective of the lobbying process.

Another key objective is to inform them of important facts they might be unaware of – given the amount of information not being divulged by the Government unless it’s compelled to, this latter role becomes even more important.

To this end, we have been working on how best to pursue the lobbying process. Working with experienced professionals, we have expanded what we do from lobbying UK parliamentarians to lobbying EU parliamentarians and other key decision-makers in both the UK and the rest of the EU.

As an example we have written to key decision-makers in the EU setting out how the deal on EU citizenship rights falls far short of protecting those EU citizens, including those from the UK, who have made life-changing decisions based on the UK’s membership of the EU.

This work is far less obvious and much less dramatic than beating the Government in court. However, it is no less important.

There were 494 amendments to the EU (Withdrawal) Bill in the committee stage, all of which we had to read and understand so that we could decide where to apply our resources most effectively.

Whatever the outcome of the “Brexit” process, what is happening has an even greater significance for the future of UK democracy and Parliament’s sovereignty.

If the UK is to leave the EU it has to be because that is “What is Best for the UK” and not because some cabal in the Government has decided that leaving the EU is in their best interest.

At present, Parliament is being “allowed” a very grudgingly-given opportunity to debate and vote on some of the “mechanics” of the leaving process. But when the result of the negotiations is known, our MPs must have a meaningful vote as to whether that result will leave the UK in a better position than its current one.

So the work goes on. We continue to be vigilant about costs, but the making of omelettes inevitably involves the breaking of eggs! Aside from the usual overheads of running any campaign organisation we need specialist advice from our litigation team, plus advice from professionals on how best to influence what is happening in the UK and EU parliaments.

So we continue to rely on contributions from our supporters both new and existing. As always, thank you to those who have been sticking with us along the way, and to new supporters, thank you for joining us. Please help us as much as you can, any and every contribution is valuable, and again, thank you.

Finally, let us wish you a Happy New Year! And may this year be even more successful than the last!

____________________________________________________

We value your support. If you share our concerns about the work needed to promote the outcome which is in the best interests of the UK, please consider making a donation by clicking on the Gold Card image.

Our aim is to help people see what's going on, understand what they are, or aren't, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
 
 To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

On Wednesday evening, in the most emphatic manner, Westminster democracy delivered a blow to Whitehall dictatorship. Parliament will endure the Government’s Brexit shenanigans no more.

The most extreme and condescending of the Henry VIII powers the Govt. was seeking to grab in the EU (Withdrawal) bill was turned into a “meaningful” vote in Parliament by principled and persistent MPs who disclosed the whips’ methods.

David Davis had tried to head this off by offering each chamber of Parliament a largely meaningless resolution on the eventual exit agreement, as a sop supposedly evidencing that the Govt. had no intention to ignore Parliament.

As anybody with knowledge of Parliamentary procedure knows, a resolution, even of both houses, is not binding. A Govt. can easily ignore such parliamentary devices, as they have been doing for months now with various Opposition resolutions passed in the Commons.

The Govt. whips have gone to extraordinary lengths to persuade MPs to “toe the line”, to the extent that they have apparently threatened legal action against MPs who disclose the whips’ methods.

Wednesday’s result is the product of a great deal of effort and resilience by MPs, and the campaigners who have mobilised support for them, to make sure that Parliament and not the Govt. retains control of both the process and the final outcome.

This is what The People’s Challenge has been talking about for some time: Parliamentary Sovereignty. Our elected MPs are taking charge, as they have done before and will continue to do.

This is not the end of what we need to do. The Govt. is likely to try and reverse this vote before this bill receives Royal Assent and more Henry VIII powers are surely to come in future Bills, but it could be the beginning of “Taking Back Control”.

Thank you to all of you who have contacted your MPs to express your concerns about unrestricted Govt. powers, you helped tonights victory happen. If your MP supported amendment 7 congratulate him/her on making a stand on your behalf, if not, ask them why he/she did not support Parliamentary Sovereignty?

____________________________________________________

We value your support. If you share our concerns about the work needed to promote the outcome which is in the best interests of the UK, please consider making a donation by clicking on the Gold Card image.

Our aim is to help people see what's going on, understand what they are, or aren't, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
 
 To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

Fuelled by the generous donations of our supporters to our ‘core funding’ GoFundMe campaign, we have been preparing in earnest for the next stages of The People’s Challenge. Here’s a short update on what we and our lawyers have been up to.

To begin with, we asked our solicitor, Bindmans’ John Halford, for a full update of our unique Legal Milestones Guide on the direction of travel, the points at which the politics of Brexit must give way to the demands of the law and how some of the fundamental rights which individuals currently enjoy, thanks to the UK’s membership of the EU, might be protected for the future.

Here then is the updated Guide packed with hyperlinks to the information that underpins it.

John and some of our barristers have also been busy identifying where legal and other action might most effectively safeguard rights and genuinely democratic accountability. They have identified five pressure points where we are actively considering action, or supporting others in taking it.

They are:

• Helping enforce information rights. Parliament has secured a “compendium” of the much-mentioned sectoral impact assessments, but the public has yet to see even that. Depending on developments in Parliament, we may take or intervene in litigation to press for full disclosure of civil servants’ view of the impact of Brexit in all of its forms.

• Shining a spotlight on the EU ‘fundamental rights safety net’. There is no prospect whatsoever of a withdrawal agreement preserving all EU rights that have been exercised in the past by UK nationals elsewhere in the EU or other EU nationals here in the UK in a form that means they will be freely available for future use.

But, to be lawful, any withdrawal agreement must itself be compatible with the basic principles of the existing EU treaties, the EU Charter of Fundamental Rights and the European Convention on Human Rights (of which the UK but also the EU as an institution are signatories).

We are investigating who might be ‘left behind’ by the citizens’ rights chapter of any UK/EU withdrawal agreement, and how MEPs may intervene to test whether this is lawful. 

• Enforcing anti-discrimination rights. Pending Brexit, EU law remains fully enforceable within the UK too. Besides the Charter, there are the free movement and anti-discrimination provisions of the Treaties and particular directives. And this is complemented by the UK’s own domestic anti-discrimination framework, found in the Equality Act 2010 and relevant parts of the Human Rights Act 1998. We are on the lookout for systemic policies and practices of discrimination against EU and EEA nationals in the UK that might be decisively challenged by ourselves, or affected people, using existing law.

Brexit must not become a licence to discriminate against anyone.

• Unpacking the EU (Withdrawal) Bill. It is well known that the Bill is riddled with Henry VIII clauses – power granting provisions that purport to allow Ministers to amend the law without further Parliamentary scrutiny to manage the consequences of Brexit behind closed Whitehall doors.

It is far less well understood how that might be challenged, especially when fundamental rights end up overridden. We are planning a citizens’ guide to the Bill, the true extent of what it could permit and the dangers that presents.

• Securing Parliament’s final say. The current Withdrawal Bill cannot satisfy the UK constitution’s loudest demand – that Parliament always has the final say when citizens’ rights may be lost.

This applies to any withdrawal agreement – and to departure from the EU if talks break down. And the demand will not be met by the Bill being amended to set 29 March 2019 as an EU departure date. That is because the negotiations are not yet concluded, the Bill is likely to be passed ahead of any agreement and, at best, the Bill is concerned only with those rights that can be transposed into UK law.

Once the extent to which rights will be abrogated or extinguished it becomes clearer, and if at that time the Government is unwilling to seek Parliament’s authority for withdrawal in an Act, a further Miller-style challenge may be mounted by way of judicial review.

Ultimately, this issue would need to be determined by the UK’s Supreme Court. As in Miller, it would need to decide who must ultimately take responsibility for Brexit on the terms that will then be known – the Government or Parliament itself.

We are pleased to see that our and other groups’ efforts on one subject are starting to produce results: Guy Verhofstadt has said that UK citizens living in the EU 27 having their EU freedom of movement rights guaranteed post-Brexit should be one of the EU Parliament’s red-lines.

It’s a start, and it’s one of the topics we covered when writing to Messrs Barnier, Juncker, Tajani, Tusk and Verhofstadt in October.

We also made a submission last month to the House of Lords EU Justice sub-committee on how the currently-proposed protections fall short of providing “reciprocal protection for Union and UK citizens, to enable the effective exercise of rights derived from Union law and based on past life choices, where those citizens have exercised free movement rights by the specified date”.

 As we have said all along, for UK citizens resident in the EU 27, right to reside on its own is insufficient for them to retain parity of rights with EU 27s resident in the UK, let alone their existing rights.

Nor will the currently-proposed protections stop major losses of rights for UK citizens currently living in the UK who have made life choices based on the EU freedoms they currently enjoy.

In order to develop and publicise these issues further, we will be compiling a categorised list of people directly affected by Brexit-related loss of rights, and more information about what they stand to lose (rights, guarantees, recourse, etc.) as things currently stand.

This list will be a “roadmap” for a (hopefully) clearer understanding of who is affected and how. Although we have written quite extensively on this subject, we feel that a lot of people will still be unpleasantly surprised by the extent of the losses and the numbers affected.

This list will be as exhaustive as we can make it, but we have to produce it in a meaningful timescale. We hope to co-operate with other groups in this endeavour in order to minimise any duplication of effort and to produce a consolidated and verified list.

Notes.

1. EU Commission Press Release on “sufficient progress” having been made;
2. The Three Knights Opinion on the revocability of the Article 50 notification;
3. The People’s Challenge “Legal Milestones on the road to Brexit”.

____________________________________________________

We value your support. If you share our concerns about the work needed to promote the outcome which is in the best interests of the UK, please consider making a donation by clicking on the Gold Card image.

Our aim is to help people see what's going on, understand what they are, or aren't, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
 
 To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

Frank Field has been a bit of a rebel for most of his time in the Commons.

Governments, both Labour and Conservative, have been in his sights except for a brief period (14 months) when he was Minister for Welfare Reform under Tony Blair.

He had tabled an amendment to the EU (Withdrawal) Bill, NC49, attempting to fix 30^th March 2019 as the date that the UK ceased to be a member of the European Union.

Following a vigorous debate yesterday evening, he withdrew his amendment.

Why does he want the date put in the Bill? You may well ask, but it seems that he is allying himself with those in Whitehall who seek to trap the UK into a deadline that is not only unnecessary but also imprudent – some would say foolish.

The government has tabled its own amendment, 381, which not only sets the date for the UK leaving the EU but also defines it as the “Exit Day” for the various purposes in the Bill. This amendment will not be voted on until day 8 of the committee stage, something that may not happen until just before the Christmas recess.

Not that that should be any reason for complacency.

Why would a government committed to getting the best possible deal for the UK seek to impose on itself a fixed date for completing the negotiations? How can that possibly be a wise negotiating strategy, let alone something that works in the best interest of the UK?

Unless the real purposes is to close down the UK’s options and try to convince the UK, its people and the rest of the world that Theresa May is in charge with her “Deal or No Deal” strategy.

It appears to be yet another example of the Government’s sleight of hand, another deliberate attempt to mislead and fool us. A move that seems designed to increase the chances of the UK crashing out of the EU with “No Deal”, which most informed people agree would be the worst possible outcome for the UK.

Apart from anything else how can it possibly be a sound and prudent idea to set an end date for the current arrangements without having even defined what it is that the UK wants post EU membership?

Ask your MP: what the reasoning behind amendment 381 is and how this helps to ensure that the UK will better off as a “third country” than as a member; how is amendment 381 a prudent course of action that is in the best interest of the UK and its people?

____________________________________________________

We value your support, both moral and financial. If you share our concerns about the work needed to promote the outcome which is in the best interests of the UK, please consider making a donation by clicking on the Gold Card image.

Our aim is to help people see what's going on, understand what they are, or aren't, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
 
 To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

On 9^th September we published an article “If a democracy cannot change its mind, it ceases to be a democracy.” This is a quote from an address given by David Davis in 2012.

Just before we wrote the article, David Davis’s Dept for Exiting the EU was quoted as saying “There can be no attempts to remain inside the EU and no attempt to rejoin it”. This constitutes a blatant attempt to stifle Parliament’s authority and also our democracy, not to mention being apparently contrary to David Davis’s beliefs.

This morning Theresa May is quoted in the Daily Telegraph (paywall) as saying:

“We will not tolerate attempts from any quarter to use the process of amendments to this bill as a mechanism to try to block the democratic wishes of the British people by attempting to slow down or stop our departure from the European Union”.

Apart from the foolishness of pre-judging where the best interests of the UK will be some 16 months in the future in our rapidly-changing world, we have the chief executive of the UK’s government insisting that she is entitled to tell the members of our Sovereign Parliament what they can and cannot do.

What sort of “Taking Back Control” is this – certainly not the sort that puts that control in the hands of Parliament, the UK’s sovereign authority, whose members have a sworn duty to do what is best for the nation and its people.

Why does Theresa May, who expresses such devotion to “the democratic wishes of the British people”, repeatedly attempt to ignore or overrule the UK democratic process? Is democracy important to her or isn’t it?

As we know, the right to confirm, or otherwise, the decision on what is best for the UK is in the hands of the UK’s Parliament: The Three Knights Opinion gives an authoritative legal confirmation of that. Lord Kerr, a co-author of Article 50, has confirmed it again in The Guardian today, and in a case in the EU Court of Justice, the EU Council has said that an action for the loss of rights can only be taken on signature of an irreversible final withdrawal agreement.

There is a political will within the EU for the UK to withdraw the Article 50 notice of intention and for the UK to return to the status quo ante.

But, and this is vastly more important, Parliament must have control of the situation and decide what is in the best interest of the UK, at the point where Parliament and the public know what the exit negotiations have produced.

As we said in our article yesterday "It’s not just the 3 Knights clause that is important", the issues involved go far beyond the immediate question of whether the UK remains in the EU or not, they strike at the very roots of our system of representative democracy and parliamentary sovereignty.

____________________________________________________

We value your support, both moral and financial. If you share our concerns about the work needed to promote the outcome which is in the best interests of the UK, please consider making a donation by clicking on the Gold Card image.

Our aim is to help people see what's going on, understand what they are, or aren't, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
 
 To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

What is the EU (Withdrawal) Bill?

The bill is supposed to be the legislation required to transform the legislation derived from the UK’s membership of the EU into standalone domestic legislation.

What are “Henry VIII” powers?

The parliamentary website gives this definition of Henry VIII powers:

“The Government sometimes adds this provision to a Bill to enable the Government to repeal or amend it after it has become an Act of Parliament. The provision enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny.

Such provisions are known as Henry VIII clauses, so named from the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation.”

Why are the Henry VIII powers in the EU (Withdrawal) Bill so extraordinary?

The Henry VIII powers sought in the EU (Withdrawal) Bill enable the government to amend not only that bill, but any and all legislation including other Acts of Parliament.

This is clearly not the same as what the Government “sometimes” does as explained above.

For instance, the government could use the powers in this bill to extend the period between General Elections or amend the authority, and restrictions placed on that authority, which Parliament has given the government in relation to the UK leaving the EU.

Why is deleting the Charter of Fundamental Rights necessary for the UK to leave the EU?

It is not necessary to delete the Charter of Fundamental Rights in order to transpose EU-derived legislation into standalone UK law.

The only conceivable reason for deleting the Charter is to remove the protections it gives. The government can then, without parliamentary supervision and control, reduce or remove legislative and regulatory provisions which protect ordinary citizens.

As Harriet Harman said (she was talking about women’s rights, her point is valid across the piece), “You should never be complacent about rights which have been really hard-won. There are always people who want to turn the clock back”.

Why is the combination of “Henry VIII” powers and deletion of the Charter so dangerous and sinister?

Deleting the Charter of Fundamental Rights from the UK’s Statute Book removes basic protections for ordinary citizens. This includes essential elements needed to protect some of the most vulnerable people in our society.

Once that happens, those seeking to tear down hard-won legislation and regulation protecting us from discrimination on the basis of race, colour, creed or gender can do so without parliamentary oversight and control, simply by using the Henry VIII powers contained in the bill.

They can even roll back the Bill of Rights of 1689, where (for example) regular parliaments, free elections, and freedom of speech in Parliament are enshrined, to suit the government’s own interest. In effect they can impose an elected (at least in the first instance) autocracy.

This is a power-grab of monumental proportions.

The government says it won’t abuse the powers it seeks to grab, so why is it trying to grab them? Given the government’s penchant for secrecy and sleight of hand, why should any of us rely on its assurances?

Furthermore, future governments could retain these powers and would not be bound by any assurances given by individuals in the present government as to how they are to be used.

The EU (Withdrawal) Bill must be based on three things: parliamentary sovereignty, proportionality of the legislation (i.e. what’s actually needed to achieve the supposed objective) and what is in the best interest of the UK and its people.

It’s clear that close scrutiny will be required to make sure that none of these are swept away or lost sight of.

Why is “The Three Knights Opinion” important in confirming Parliamentary Sovereignty?

The proposed amendment (number 7 put forward by Dominic Grieve and others) that is probably most widely discussed is that which requires that whatever the exit terms are, they enter into law by means of an Act of Parliament.

This gives Parliament the “meaningful vote” on exit terms agreed (or not agreed). It also ensures that the vote takes place before the exit, which must happen, whatever the nonsense that has recently been talked.

The “meaningful vote” is in line with the legal opinion embodied in “The Three Knights Opinion” we commissioned. At the time of the EU (Notification of Withdrawal) debates, all MPs were provided with a copy of that opinion and a briefing note on its importance. This obviously included Theresa May and David Davis.

But the bottom line is that Parliament’s sovereign authority over the acceptance or rejection of the exit terms continues to exist until such time as it is exercised. The exercise of it will be the definitive confirmation of the UK’s exit from the EU or of its decision to remain in the EU.

Although it would be much clearer if that authority were embodied in the EU (Withdrawal) Act, its exclusion does not invalidate Parliament’s authority.

If all of this seems to you to be grounds for concern, please contact your MP, write a letter or make an appointment at the “surgery” perhaps, to discuss things. Here are some suggestions for questions you might want to ask:

1. Do you think it’s necessary to delete the Charter of Fundamental Rights? If so, why? If so, what will be done to protect ordinary people from abuse of their rights? If not, what will you do to defend the rights of ordinary people threatened by this and/or preserve the Charter?
2. Do you think these wider-ranging-than-normal Henry VIII powers are necessary? If so, why? Do you see them as potentially dangerous? If not, why not? How can they be limited to what is proper and prevented from becoming an Executive “blank cheque” to ride rough-shod over any and all existing legislation for an indefinite time? If that is not done, will you refuse to support them?
3. Is this momentous decision one that should be made by our elected sovereign Parliament or by an appointed executive?

Please don’t let yourself be told, “We’re strong and stable…”, “We’ve been very clear about this…”, “If there’s a problem, come and see me…” or similar platitudes.

Whatever the political colour, now is not the time to be fobbed off with such soundbites!

____________________________________________________

We value your support, both moral and financial. If you share our concerns about the work needed to promote the outcome which is in the best interests of the UK, please consider making a donation by clicking on the Gold Card image.

Our aim is to help people see what's going on, understand what they are, or aren't, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
 
 To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

As some of you may have seen yesterday, we said that the Brexit Impact studies would say more about the Govt than they would about Brexit.

Well now we have it. It seems possible, and even likely, that these papers don't exist, other than as scribbles on a pizza box.

The Govt apparently needs 3 weeks to "compile" these studies. We ordered Impact studies, apparently long since finished, people have been talking about them for weeks! It now seems that we asked for an illuminated Gutenberg Bible in velum and leather bindings.

Did the Govt commission these Impact assessments? When were they commissioned? Have they been completed? Or was the Govt just hoping to string Parliament and the public along, and is only now doing its due diligence because it's being forced to?

____________________________________________________

We value your support, both moral and financial. If you share our concerns about the work needed to promote the outcome which is in the best interests of the UK, please consider making a donation by clicking on the Gold Card image.

Our aim is to help people see what's going on, understand what they are, or aren't, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
 
 To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

The contents of the soon-to-be-released Brexit Impact studies may supply more detail on the extent of Brexit's repercussions and give us specifics that we haven’t had up to now.

There is, however, the suspicion that they will simply confirm that the Government is confused about, and unprepared for, where it is taking the UK.

There is also the possibility that our fears, most recently expressed in Gina Miller’s article in the Guardian, will be realised by the Government’s releasing summaries/redactions which tell us far less than the whole story, or even next door to nothing.

However, the options covered in the Brexit impact statements will tell us a lot about the Govt's intentions and whether it can be trusted - you might have noticed that.

Will it be just deal or no deal? Will it also cover staying in with the status quo?

This information will help to confirm whether Theresa May is attempting to force a particular outcome regardless, and how far the Govt is prepared to go in this endeavour.

These papers have been requested and demanded for months and the Govt has consistently turned down anybody and everybody. This is doubly worrying.

First, the Govt is hiding potentially vital information that our MPs will need when approving, or otherwise, a final deal.

Second, Brexit is already rumoured to be the worst idea since powdered water, so how bad do these Impact assessments have to be for them to give Brexit an even worse name?

It is unknown at this point if and when any of these papers were produced, have some been produced, have any of them? Are there more to come? It would be hard for the Govt to release what it doesn’t have.

Is it merely dissembling or actually secretive, bearing in mind that this Govt has made a habit of secrecy.

Beyond the objectionable nature of such secrecy in a democracy, let us look at the implications of the Impact assessments.

If they give a positive view of Brexit, does anyone have any doubt that they would have been released or leaked already? If on the other hand they give an unfavourable view of Brexit, what right does the Govt have to withhold the truth from us (surely “the people” deserve better than that)?

If Brexit is turning into even more of a disaster, our MPs need the information in order to fulfil their oath and make an informed decision on our behalf. Equally, if we are to go ahead, we have a right to know how bad the damage is going to be so we can communicate with our MPs on that basis.

So finally, the Govt has no basis for keeping the studies secret, nor even for redacting them, not in a democracy.

The only logical conclusion is that this is an attempt to subvert Parliamentary democracy and lie (by omission) to the public.

Whatever the content of the Brexit Impact studies, we and our MPs have a right to know in order to exercise parliamentary democracy and self-determination, and in that I think they will prove useful.

But do not expect that they will throw much light on where the government is taking our country, they will say more about what sort of government this is and the state of chaos and confusion in Whitehall.

____________________________________________________

We value your support, both moral and financial. If you share our concerns about the work needed to promote the outcome which is in the best interests of the UK, please consider making a donation by clicking here.

Our aim is to help people see what's going on, understand what they are, or aren't, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.

To help protect our fundamental rights, and support Parliament in safeguarding them, please send us a donation so we can maintain our campaign and make your voice heard.

Please share this article as widely as you can, thank you very much for your support.

Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

We have recently raised our GoFundMe target and accelerated our plans. This money is already being put to good use. It allows us to pay for website maintenance, communication costs and other “everyday” expenses as well as travel and accommodation costs for attending events. We will be able to attend events to support the work of other groups.

Rob will be speaking in Bristol on Saturday 14^th October at the “Bristol for Europe” event starting at 14h15. This is one of a series of events to be held on that day at locations across the country. He will be talking about the wider implications of Brexit as well as some of the still as yet undiscussed consequences for individuals and groups of individuals. If you can’t attend, other events are being held across the country, we would particularly draw your attention to the ones being held in Cambridge, Cardiff, and York. For further details see: https://regionalrallies.wordpress.com/

Grahame will be meeting next week with our solicitor John Halford to discuss the urgent and important aspects of our plans in light of recent events. We expect this meeting to give us an outline of important future discussions and of urgent work to be undertaken immediately.

As we have previously mentioned, we have brought Susie Alegre on board for our advocacy work, she and John Halford will be working in coordination to ensure smooth cooperation and/or transition between advocacy work and potential legal challenges.

We’d like to take this opportunity to thank everybody who has contributed to our campaign and remind anybody who hasn’t that they can also help by spreading the word.

Ironically the title is a quote from David Davis back in 2012.

Now David Davis’s Dept for Exiting the European Union is saying “There can be no attempts to remain inside the EU and no attempt to rejoin it.”

By David Davis’s own measure the DExEU is now trying to stifle democracy in the UK.

We have known for some time that legal opinion says that the decision to trigger Article 50 is revocable both under the UK constitution and the EU Treaties. We commissioned and published the opinion from “The Three Knights” back in February this year.

Does the government have equally credible and powerful opinion either supporting or contradicting “The Three Knights”?

Perhaps we will know shortly as Jessica Simor QC from Matrix Chambers has submitted a Freedom of Information request to Theresa May asking her to release the advice she has received. According to Sunday’s Guardian Jessica Simor has been told by “two good sources”:

“that the article 50 notification can be withdrawn by the UK at any time before 29 March 2019 resulting in the UK remaining in the EU on its current favourable terms.

“Such advice would also accord with the view of Lord Kerr, who was involved in drafting article 50, of Jean-Claude Piris, former director general of the EU council’s legal service, and of Martin Selmayr, a lawyer and head of cabinet to the European commission president.” She says “there is no time to waste” and adds: “It is important that this advice is made available to the British public and their representatives in parliament as soon as possible.”

As Labour MP David Lammy said, again in Sunday’s Guardian, “It is frankly quite absurd that the Department for Exiting the European Union is refusing to publish these studies while ministers go around talking about the repatriation of parliamentary sovereignty and taking back control.”

The People’s Challenge knows about this government’s penchant for secrecy. In the Divisional Court we had to force the disclosure of the “secret arguments” it was proposing to use to defend its intention to use the Royal Prerogative.

The government’s lack of openness and transparency about issues such as the revocability of the Article 50 notification, and the extent to which it seeks to reserve to itself “Henry VIII” powers to bypass Parliamentary Sovereignty, constitute a far bigger threat – a threat that the government seems intent on keeping out of sight below the surface of the so-called debate.

Brexit is only the tip of the iceberg we are being driven towards.

On 17^th February last we said:

“On Monday the House of Lords will debate a Bill designed to surrender the Parliamentary sovereignty that was upheld by the Supreme Court only weeks ago. We hope this Opinion will help peers understand that the Bill does not have that effect, Parliament will still be able to deploy its constitutional handbrake at any time during the next two years, and the EU will be bound to respect that. This leaves open the option of withdrawing our Article 50 notice if there is no acceptable deal agreed and Parliament decides that a hard Brexit is not in the national interest. The Three Knights’ Opinion is now the most authoritative view available on Article 50, short of a judgment by the European Union’s own Court of Justice. It brings into sharp focus Parliament’s constitutional role in protecting the national interest and the rights of businesses and millions of citizens, whatever the Government might say and whatever promises it makes about being able to negotiate an agreement with 27 other countries during the next eighteen months.“

8 months on it seems that nothing has changed: the government will not disclose what advice it has about the constitutional position and seems intent on telling our Sovereign Parliament what is, or isn’t, allowed.

We must actively defend the Rule of Law, Parliamentary Sovereignty and People’s Fundamental Rights against those who would sweep them away in the pursuit of some dogmatic, self-serving principle.

The People’s Challenge is prepared to step up to this need, as we have done in the past, and with your continued support we will succeed.

Notes.

Link to the Guardian article - Theresa May under pressure over ‘secret advice’ on halting Brexit

The People’s Challenge Three Knights Opinion - The Three Knights Opinion

The Opinion’s authors are Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC (retired) and the QCs that acted for the People’s Challenge Group in Miller vs R, Helen Mountfield QC and Gerry Facenna QC.

Sir David Edward QC practised at the Bar in Scotland prior to his appointment as the United Kingdom’s Judge at the European Court of First Instance from 1989-1992 and subsequently Judge of the European Court of Justice from 1992 until 2004. In 2004 he returned to become a part-time judge of the Court of Session in Scotland. He is a Privy Councillor, Professor Emeritus at the University of Edinburgh and an Honorary Fellow of University College, Oxford.

Sir Francis Jacobs QC served as the United Kingdom’s Advocate General at the European Court of Justice from 1988 to 2006, having previously combined an academic career as Professor of European Law at the University of London with practice at the Bar. He is the President of the Centre of European Law at King's College London and a visiting professor at the College of Europe. He was appointed a Privy Councillor in December 2005 and continues to practice at the Bar.

Sir Jeremy Lever QC is one of the most senior and respected figures in EU and competition law. 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 on behalf of the UK Government, the European Commission and the European Parliament. He is a Distinguished Fellow and Senior Dean of All Souls College, Oxford and in 2003 was knighted for services to European Law.

As we have seen in the wake of Theresa May's Florence speech and the negotiations in Brussels, although some things may be getting slightly less muddled others are becoming or remaining disturbingly foggy.

A large part of our work at The People's Challenge is to research, clarify and inform people about their existing rights and how they affected by Brexit. The debate had by politicians and the public alike has been unable to answer some of the important questions about withdrawal from the EU and, as Susie Alegre points out in a post on the Doughty Street Chambers blog, talking about right to remain barely scratches the surface of the issues that concern UK citizens' rights.

For example, these UK citizens may own property in EU27 countries but not necessarily reside there, they may operate a business in part or entirely in the EU or they may have, or planned to, retire in the EU to make their pensions go further.

For convenience we've reproduced Susie's post here:

The latest round of negotiations on Brexit ended this week in Brussels with mixed reviews.

Citizens’ Rights is one of the three key areas on which the EU insists sufficient progress must be made in the withdrawal negotiations before it will begin to talk about any future relationship between the EU and the UK.  So far, it seems unlikely that the EU will accept that enough progress has been made in this area at the European Council in October and the latest technical note highlights some key areas of disagreement.  

But while there have been numerous reports on the UK proposals on EU 27 citizens’ rights in the UK post Brexit, organisations like the People’s Challenge raise concerns that there has been very little attention given to the impact on British EU citizens, wherever they may live, who look set to lose the EU citizenship they have built their lives around.

The British Government is meant to be representing the interests of British citizens in the Brexit process, but recent statements raise serious questions about their ability to understand and represent the position of British people concerned about losing their EU citizenship and all that entails.

Last Friday Theresa May said, in her Florence speech that “… throughout its membership, the United Kingdom has never totally felt at home being in the European Union.” And Boris Johnson, in his Telegraph article the previous week said: “I look at so many young people with the 12 stars lipsticked on their faces and I am troubled with the thought that people are beginning to have genuinely split allegiances.”

For many, these statements do not reflect the way they feel about being both British and European – so where can we find policy makers that can and will stand up for our rights?

Guy Verhofstadt, the lead European Parliament negotiator on Brexit gave a speech at the LSE yesterday where he spoke passionately about EU citizenship saying: “British citizens will lose their EU citizenship… millions want to keep it… this is the proof that we have to take it into account and proof that the European project is about much more than single market and common currency…

the essence [of the European project] is understanding inside Europe that identities are not simple, not straightforward, that you cannot do politics in categorising identities – there are as many identities as there are people…..

Accusing people of split allegiance is reactionary and reductionist - beware of politicians who want to define your identity. People define themselves how British and how European they feel.”

But while his statements on EU citizenship and related rights are encouraging, his analysis that the EU proposals maintain the existing situation in relation to rights is not borne out in the negotiating documents.

The technical note highlights two key areas of importance to British EU citizens where the EU is not offering a continuation of the status quo:

-Further free movement rights - the EU position is that “UK nationals in scope of withdrawal agreement only have protected rights in the state(s) in which they have residence rights on exit day, without prejudice to Social Security rights. Conditions for return as provided under EU law….” The UK position is that all UK nationals in the scope of the agreement should retain existing rights to move between EU 27 countries.

-Voting rights – the EU position is that “Member states are free to give voting rights to third country nationals regardless of the withdrawal agreement.” This will mean different practices in different countries.  The UK position is to protect existing rights in the withdrawal agreement.

These two issues are the essence of EU citizenship for British people who cherish and rely on both their British and European identities.  This should not be an issue of “us against them” in the negotiations.  

As Guy Verhofstadt made clear, MEPs have a duty to defend citizens’ rights, whatever their nationality, and for the time being MEPs represent British citizens both in the UK and those currently residing in the EU 27.  He says that “we are fighting for EU citizenship as a translation of what it means to belong in Europe…. European Citizenship is not a by-product of nationality, because you are by accident born in an EU Member State…” The European Parliament needs to make sure that this principle is not forgotten by other EU institutions in the negotiations on Brexit.

At the moment, whether or not a British citizen will be able to retain EU citizenship following Brexit depends on a number of accidents – whether you, a parent, grandparent or spouse happened to be born in another EU Member State; whether you happen to be currently residing in an EU Member State; and how the EU Member State you happen to be connected with manages its rules on naturalisation and dual nationality.
None of these factors has anything to do with how “European” a person may feel and none of them fit with the concept of European Citizenship and multiple layers of identity that Guy Verhofstadt is talking about.

Some MEPs, including Guy Verhofstadt, have shown that they understand the importance of EU citizenship to many British citizens and have made proposals around associate citizenship in an attempt to grapple with the issues but so far this has not been recognised in the EU negotiating position. Although not directly involved in the negotiations, the European Parliament will ultimately have to consent to the Withdrawal Agreement negotiated by the EU and the UK.  But the issues involved are too complex to leave to the blunt instrument of a potential veto from the European Parliament.

The EU and its Member States need to recognise that the issue of UK citizens’ futures in the EU post-Brexit is not just a question of a quid pro quo with the UK Government – rather, the way the EU treats its British citizens and their rights in the Brexit process is a test of its commitment to European values and the essence of EU citizenship. With the clock ticking on the Article 50 timetable, it is crucial that issues of EU citizenship and associated rights beyond the simple right to reside take centre stage if the EU is to live up to its values and send a signal about what Europe means for the future.

‘A “new dynamic” had been created by Theresa May’s speech in Florence last week, Michel Barnier said during a press conference with the Brexit secretary, David Davis.

Both parties agreed that progress had been made, especially on the issue of citizens’ rights, but it became clear from comments in Brussels and elsewhere that outstanding issues remained.’
https://www.theguardian.com/politics/2017/se

Please consider supporting The People's Challenge on GoFundMe

As we have seen in the wake of Theresa May's Florence speech and the negotiations in Brussels, although some things may be getting slightly less muddled others are becoming or remaining disturbingly foggy.

A large part of our work at The People's Challenge is to research, clarify and inform people about their existing rights and how they affected by Brexit. The debate had by politicians and the public alike has been unable to answer some of the important questions about withdrawal from the EU and, as Susie Alegre points out in a post on the Doughty Street Chambers blog, talking about right to remain barely scratches the surface of the issues that concern UK citizens' rights.

For example, these UK citizens may own property in EU27 countries but not necessarily reside there, they may operate a business in part or entirely in the EU or they may have, or planned to, retire in the EU to make their pensions go further.

For convenience we've reproduced Susie's post here:

The latest round of negotiations on Brexit ended this week in Brussels with mixed reviews.

Citizens’ Rights is one of the three key areas on which the EU insists sufficient progress must be made in the withdrawal negotiations before it will begin to talk about any future relationship between the EU and the UK.  So far, it seems unlikely that the EU will accept that enough progress has been made in this area at the European Council in October and the latest technical note highlights some key areas of disagreement.  

But while there have been numerous reports on the UK proposals on EU 27 citizens’ rights in the UK post Brexit, organisations like the People’s Challenge raise concerns that there has been very little attention given to the impact on British EU citizens, wherever they may live, who look set to lose the EU citizenship they have built their lives around.

The British Government is meant to be representing the interests of British citizens in the Brexit process, but recent statements raise serious questions about their ability to understand and represent the position of British people concerned about losing their EU citizenship and all that entails.

Last Friday Theresa May said, in her Florence speech that “… throughout its membership, the United Kingdom has never totally felt at home being in the European Union.” And Boris Johnson, in his Telegraph article the previous week said: “I look at so many young people with the 12 stars lipsticked on their faces and I am troubled with the thought that people are beginning to have genuinely split allegiances.”

For many, these statements do not reflect the way they feel about being both British and European – so where can we find policy makers that can and will stand up for our rights?

Guy Verhofstadt, the lead European Parliament negotiator on Brexit gave a speech at the LSE yesterday where he spoke passionately about EU citizenship saying: “British citizens will lose their EU citizenship… millions want to keep it… this is the proof that we have to take it into account and proof that the European project is about much more than single market and common currency…

the essence [of the European project] is understanding inside Europe that identities are not simple, not straightforward, that you cannot do politics in categorising identities – there are as many identities as there are people…..

Accusing people of split allegiance is reactionary and reductionist - beware of politicians who want to define your identity. People define themselves how British and how European they feel.”

But while his statements on EU citizenship and related rights are encouraging, his analysis that the EU proposals maintain the existing situation in relation to rights is not borne out in the negotiating documents.

The technical note highlights two key areas of importance to British EU citizens where the EU is not offering a continuation of the status quo:

-Further free movement rights - the EU position is that “UK nationals in scope of withdrawal agreement only have protected rights in the state(s) in which they have residence rights on exit day, without prejudice to Social Security rights. Conditions for return as provided under EU law….” The UK position is that all UK nationals in the scope of the agreement should retain existing rights to move between EU 27 countries.

-Voting rights – the EU position is that “Member states are free to give voting rights to third country nationals regardless of the withdrawal agreement.” This will mean different practices in different countries.  The UK position is to protect existing rights in the withdrawal agreement.

These two issues are the essence of EU citizenship for British people who cherish and rely on both their British and European identities.  This should not be an issue of “us against them” in the negotiations.  

As Guy Verhofstadt made clear, MEPs have a duty to defend citizens’ rights, whatever their nationality, and for the time being MEPs represent British citizens both in the UK and those currently residing in the EU 27.  He says that “we are fighting for EU citizenship as a translation of what it means to belong in Europe…. European Citizenship is not a by-product of nationality, because you are by accident born in an EU Member State…” The European Parliament needs to make sure that this principle is not forgotten by other EU institutions in the negotiations on Brexit.

At the moment, whether or not a British citizen will be able to retain EU citizenship following Brexit depends on a number of accidents – whether you, a parent, grandparent or spouse happened to be born in another EU Member State; whether you happen to be currently residing in an EU Member State; and how the EU Member State you happen to be connected with manages its rules on naturalisation and dual nationality.
None of these factors has anything to do with how “European” a person may feel and none of them fit with the concept of European Citizenship and multiple layers of identity that Guy Verhofstadt is talking about.

Some MEPs, including Guy Verhofstadt, have shown that they understand the importance of EU citizenship to many British citizens and have made proposals around associate citizenship in an attempt to grapple with the issues but so far this has not been recognised in the EU negotiating position. Although not directly involved in the negotiations, the European Parliament will ultimately have to consent to the Withdrawal Agreement negotiated by the EU and the UK.  But the issues involved are too complex to leave to the blunt instrument of a potential veto from the European Parliament.

The EU and its Member States need to recognise that the issue of UK citizens’ futures in the EU post-Brexit is not just a question of a quid pro quo with the UK Government – rather, the way the EU treats its British citizens and their rights in the Brexit process is a test of its commitment to European values and the essence of EU citizenship. With the clock ticking on the Article 50 timetable, it is crucial that issues of EU citizenship and associated rights beyond the simple right to reside take centre stage if the EU is to live up to its values and send a signal about what Europe means for the future.

‘A “new dynamic” had been created by Theresa May’s speech in Florence last week, Michel Barnier said during a press conference with the Brexit secretary, David Davis.

Both parties agreed that progress had been made, especially on the issue of citizens’ rights, but it became clear from comments in Brussels and elsewhere that outstanding issues remained.’
https://www.theguardian.com/politics/2017/se

Please consider supporting The People's Challenge on GoFundMe

The People's Challenge on GoFundMe

You cannot be serious, man!

You may not have been able to listen to the Commons debate on the EU (Withdrawal) Bill last Thursday and Monday.

The speeches are available online. Some of them esp. Kier Starmer, Ken Clarke and Hilary Benn are really worth hearing.

The Government is seeking powers (“Henry VIII powers”) well beyond those it really needs, as a number of Honourable Members explained.

If the Bill granting those powers is passed, the Government could make other moves far beyond those necessary to leave the EU.

The Government could even use these powers to change the terms of the Withdrawal Bill itself without referring to Parliament. And let’s not forget that today’s Government could be gone tomorrow, so personal assurances by current incumbents about "come and see me" are worth absolutely nothing.

David Davis wants these "Henry VIII" powers to act without going back to Parliament again. They are supposedly to allow him, as Secretary of State, not only to “fill in the gaps” that are a consequence of the complex process of leaving the EU but also to make changes “wherever necessary”.

And why are they seeking powers of this enormous scope? Because the Government does not have a clue about what those gaps may be and what will be necessary.

Or do they want these powers in order to turn the UK into a low taxation, low regulation "Singapore off the coast of the EU"?

Theresa May has been committed to “Brexit is Brexit” since June 2016. As of September 2017, it is “clear” (a favourite word of hers) that neither she nor her ministers know the extent of what needs to be done.

And so the Secretary of State wants to be granted the power to do “whatever is necessary” (i.e. whatever TM and her Government haven’t yet got a clue about) without parliamentary scrutiny.

“We don’t know what we’re doing, but let us do it unsupervised anyway”.

How is this the UK’s Sovereign Parliament “Taking Back Control”? The Government is seeking to reserve powers to a Cabinet Minister, not to Parliament!

As we and our co-litigants successfully insisted over the triggering of Article 50: as we are doing this, we must do it properly, with our Sovereign Parliament in control.

We must not let Parliament be bypassed – whatever your political standpoint, giving a Government unfettered control is retrograde, undemocratic and very dangerous to boot!

Parliament has voted to approve the second reading, which means there will next be a committee stage before it comes back to Parliament.

This is the opportunity for the bill to be closely examined, for the Government to be closely questioned about why such wide-ranging powers should be necessary and how their use would be limited, aside from the “personal assurance” nonsense (see above) being bandied about in the House during the debate.

And just one more thing: accession to the EU, and treaties amending the EU (Maastricht, Lisbon etc.), were debated in the House for around 20 days. The government proposes that the incredibly important and complex issue of leaving the EU, which they themselves manifestly don’t understand, be allocated just 8 days for debate.

I suggest to you that the Government doesn’t learn from its past mistakes, a very worrying thing in itself. I believe it is in bulldozer mode again, seeking to push this measure through before MPs and their constituents (i.e. the British people) have had a proper opportunity to consider the ramifications and engage in the debate.

Please contact your MP and leave him/her in no doubt of your opinion about this attempted power grab, and the reasons behind it. Parliamentary democracy is hugely important and must not be given away, especially into such ignorant and irresponsible hands.

Please also consider supporting The People's Challenge on GoFundMe

"Well, frankly the Government can say whatever it wants, it doesn't make it true."

Here Tahmid Chowdhury of The People's Challenge talks to RT about the Repeal Bill, Henry VIII powers and Fundamental Rights.

Please consider supporting The People's Challenge on GoFundMe

The Government has produced a Bill that Dominic Grieve described as "a monstrosity of a Bill", Sir Ken Clarke was equally unimpressed with the bill saying that assurances would just not cut it anymore!

Labour was just as scathing, Sir Keir Starmer spent a considerable amount of time lampooning David Davis, tearing great big holes in the Bill and reminding him that he had triggered a by-election over less controversial material.

We’ve probably all heard of The Perfect Storm. Apart from anything else, it’s a good film based on true events.

It seems the current political situation in the UK might be considered to be a perfect storm. Hmm.

A perfect storm is a naturally-occurring rare combination of circumstances which will aggravate a situation drastically. Classically, there are three elements:

• hotter air – there’s certainly plenty of that; 
• cooler air – plenty of that too, although most seems to be abroad; 
• humidity – there's hardly a dry seat in the house;

Can the UK’s current political situation be considered natural? I don’t think so. It’s the product of cynical manipulation by various self-seeking factions, all of which rate their own ends far more highly than the best interest of the UK.

But there are certainly three very important elements in it which have now come together, whether by accident or by design:

• Brexit; 
• The government’s attempted grab of “Henry VIII powers”; 
• The flagrant disregard of human rights issues inherent in the Brexit situation.

The government is apparently determined to deliver Brexit on “her” own terms, because “the people have spoken”.

The type of Brexit was not part of the question that people were asked in the referendum, so the referendum result can’t be claimed to be a mandate to exit the EU with or without a deal of whatever kind.

The ramifications of leaving the EU are still far from clear, either to us or to the politicians, who are the only ones naïve enough to have allowed themselves to be left with this poisoned chalice.

The government tried to bulldoze its way through to triggering Article 50, but the UK people and the UK courts reined it in. It is now attempting to grab “Henry VIII powers” which would allow it to act without further reference to Parliament.  Again, it must be reined in, and the people of the UK must show Parliament that it has their support to act in the best interest of the country.

This particularly involves MPs abiding by the oath they swore before taking their seats, and not being browbeaten by their party establishment into acting against the interests of their country, their constituents and/or their personal beliefs.

In the EU, many citizens have chosen to move to another EU country, whether temporarily or permanently, to live and work. Some have, perhaps for career reasons, moved round a lot.

 All have relied on their status as not only a national of their own country, but also as an EU citizen, to do this with minimal difficulty. This has been the norm for over 40 years. Their rights to have their situation protected (as a “result” of a referendum in which many of them were refused the right to vote) are being given very little attention.

UK citizens resident in the UK with little desire to go elsewhere except on holiday are also affected…

The UK is heavily reliant on EU citizens to work in UK healthcare, and to harvest, process and serve food in the UK. As I have said elsewhere, UK citizens need other EU citizens to feed them, and to care for them when they’re being born, ill or dying, and it doesn’t get more fundamental than that. Freedom of movement is just the tip of the iceberg…

So, is this the perfect storm?

More like the perfectly dreadful storm! Setting the UK back half a century in its pursuit of a more modern and civilised way to co-exist and work together.

In fact, it’s probably a self-inflicted nuclear winter, where social, political and economic “progress” have all gone into reverse.

A perfect storm is a naturally occurring phenomenon. We can do little or nothing about it.

The current situation in the UK is far from that. 

We can influence what happens, we can stop bigotry and idiocy driving us towards a very bad outcome for the UK, especially if this crazy “no deal is better than a bad deal” idea persists.

Nothing, nothing about the current situation is absolutely inevitable. We can change things for the better if we work together. 

Current weather news shows us how bad storm damage can be. We also see that storms don’t always come one at a time, one hurricane may hide another… or several.

So what have we learnt about the UK from the talks in Brussels and the Queen’s Speech?

To be frank, very little, and there is a very good reason for that – the cynical and self-serving election that Theresa May called backfired.

It didn’t deliver Theresa May a landslide victory; it was more like a sandcastle being undermined by the incoming tide.

Theresa May wanted to wipe out any parliamentary opposition, whether from within her own party or anywhere else.

She wanted to grab an open-ended mandate so that she could go off to Brussels (didn’t Theresa May say she was going to lead the negotiations?) and say to the EU “My country has given Me a mandate to do what I like”. Instead David Davis was packed off to Brussels to exchange gifts, shake hands and have lunch.

Why did this happen?

A monumental misjudgement on the part of Theresa May is the fundamental point. A misjudgement not just on one issue but on several issues:

1. Strength of feeling among younger voters, the minorities, those who felt they were being ignored;
2. Running a campaign based on personality when she did not have the personality to pull it off;
3. Assuming that the referendum vote and this general election was all about the EU and nothing about the dysfunctional state of the UK;
4. She took for granted her strongest supporters and loaded up her manifesto with measures that would hit them and their children;
5. Last but not least, Theresa May misjudged her opponents.

The election was supposed to be all about Brexit and in fact there was very little debate about Brexit, except during Theresa May’s “Strong and Stable” phase.

We have a hung parliament with both major parties maintaining the meaningless position that the UK is going to leave the EU.

I say meaningless because we still don’t know what we are leaving the EU for. The major parties have conflicted and conflicting positions – “Jobs and Prosperity First”, “Leave the Single Market, Customs Union”, “Remain in the Single Market, Customs Union”. The permutations are endless and are spoken with equal conviction, i.e. none, by politicians no matter whether they wear a Red or a Blue rosette.

So almost exactly one year on from the referendum we still don’t know what the major parties intend for the UK post Brexit and substantive negotiations have still not started between the UK and the EU.

As if this wasn’t bad enough, we have a Prime Minister whose judgement is suspect to say the least and it seems that her negotiating skills are not up to much either.

Perhaps we will get some clarification during the debate on the Queen’s Speech.

It is more likely that we will see the two main parties competing to see which can give the most obscure redefinition of “Brexit means Brexit”.

As widely predicted yesterday's meeting between the EU Chief Art. 50 negotiator Michel Barnier and the UK's David Davis was largely symbolic.

They had lunch and agreed the negotiating programme that covers the next 4 months that the EU had set out.

David Davis's much vaunted "row of the summer" over whether exit talks and trade talks were going to be held in parallel or sequentially didn't materialise, they will happen sequentially as the EU proposed.

We now have to wait until the 17th July for the first substantive round of UK/EU negotiations.

In the meanwhile The People's Challenge will finish its own roadmap of what is likely between now and 00:00 30th March 2019.

We have been working on identifying the legal, judicial, and political events and questions which will shape the coming months as the UK and the EU seek to unravel 44 years of mutual agreements.

Once we know what is in the Queen's Speech and, what parliament approves, we will publish this roadmap.

So, against a background of increasingly confused and confusing stories coming from Westminster, these Brexit “negotiations” are about to “start”.

I use quotes because the agenda for Monday is very reminiscent of something which might be referred to as “flannel”. Lots of talking under vague terms like “working groups” and “Meeting of coordinators”. I get that the dog has to see the rabbit, but still there doesn’t appear to be a single session focused on any particular issue.

This is disappointing, but of course not surprising. Unlike the EU (see here and here for the EU’s position papers) the Govt has not presented its position or policy to Parliament (or anyone else for that matter). It would appear the Govt doesn’t know which way is up following Theresa May’s monumental cock-up in the election.

Currently the only person in the UK who (possibly) knows what will be going on in Brussels is the PM. Parliament has not been presented with the Govt plans for the negotiations, so it’s no longer “no running commentary”, it’s “we’re gonna go and do whatever”.

Again, “no running commentary” is not surprising. It is in the best interest of the PM that the humiliation the Govt is likely to suffer at the negotiating table remains a private one.

If only it wasn’t just Michel Barnier who had committed to open and transparent negotiations…

It’s been 5 months since the Supreme Court ruled in favour of the People’s Challenge – confirming that Brexit was a Parliamentary and not a Royal Prerogative decision. It’s worth noting that this decision was made by a UK court, composed of UK judges, according to UK law.

Following that, the People’s Challenge commissioned the “Three Knights Opinion“. This provided convincing and authoritative evidence that the UK’s Parliament has the opportunity, and indeed the obligation, once the outcome of the Article 50 negotiations is known, to make the decision about which of all the possible options is in the best interest of the UK and its people.

The necessity for this decision, one that obviously has to be made independent of party political interests, has been thrown into sharp relief by the outcome of this general election (June 2017) called by an autocratic and out-of-touch Prime Minister.

Former Tory cabinet minister Stephen Dorrell, said in today’s Guardian:

“At the beginning of the general election campaign, Theresa May said she was seeking a mandate to negotiate her sort of Brexit; the result denies her that mandate.”

He added: “The prime minister’s version of Brexit was set out in the Conservative election manifesto; it said that sovereignty was a red line, and concluded that Britain must withdraw from both the single market and the customs union. In doing so, it threatened our economic interests, and funding for our public services.”

“At a time when many families have seen no improvement in their living standards for more than a decade, and public services are grappling with rising demand and squeezed budgets, voters concluded that these priorities were simply perverse and refused to endorse them.”

“That will require parliamentarians to maintain an open mind; they will need to question the negotiating mandate developed by ministers and they will need to make it clear to ministers that they cannot take support for granted at the end of the negotiating process.“

“Most importantly, despite anything the prime minister may say, it is essential that parliament maintains for itself the option of voting for Britain to remain a member of the EU if it becomes clear that this is the best way to secure Britain’s national interest.”

Source: ‘Drop hard Brexit plans’, leading Tory and Labour MPs tell May | Politics | The Guardian

We thought now would be a good time to let our original supporters know what we have been up to since the Supreme Court unequivocally upheld parliament’s sovereignty indecision-making on the UK’s withdrawal from the EU in its Miller judgment.

Incredibly, that was only a month ago. But a month is a very long time in politics. Hopes of parliamentary resistance to withdrawal have since been repeatedly dashed, first by Labour MPs being whipped to support the EU(Notification of Withdrawal) Bill, then then by its passage through the Commons unamended and, more recently, with Labour’s shadow leader in the Lords, Angela Smith, disavowing any intention to‘pin pong’ the Bill between the two Houses. Teresa May was present as the Lords’ first debate opened, as if to watch her plans unfolding without hindrance. 

But things are not quite so clear cut. 

First, using funds raised so far in the Second People’s Challenge campaign, our team had discussions with, and briefed, MPs from all major parties who were interested in pressing for parliamentary control to be embedded in the Bill. 

We also prepared a plain English guide to the EU citizenship rights at stake in the negotiations - rights that cannot be preserved by the Great Repeal Bill – and sent this to all MPs. 

Our legal team also drafted an amendment which was tabled, albeit in a revised form, as NC99. A similar amendment, NC110, went to a vote and attracted significant support including from Tory rebels. 

Though neither amendment was passed, the political support for them in the Commons will matter in the House of Lords which began its debates on the Bill on Monday and Tuesday this week. The Committee stage starts on Monday 27 February and will be completed on 1 March. The Reports stage and Third Reading will be on 7 March. If amendments are passed by the Lords, the Bill will be returned to the Commons so it can debate whether to accept them or not.

Although it is now clear the Bill will be passed, peers have proposed multiple amendments to protect the 2.9 million EU nationals currently resident in the UK regardless of the outcome of the withdrawal negotiations. Such protection would be both compassionate and pragmatic. Case-by-case decisions on the fate of millions are impractical.  Acknowledging that resident EU nationals should remain here would encourage other EU states to reciprocate with their UK national residents. Without Miller,none of this would be up for debate. 

Then there is the question of Parliament’s future role. 

Ministers promised the Commons that they would “put the final deal that is agreed between the UK and the EU to a vote in both Houses” covering “not only the withdrawal arrangements but also the future relationship with the European Union”. Ministers “expect” this will happen “before the European Parliament debates and votes on the final agreement”. 

But such promises can be broken and expectations go unfulfilled. And the constitutional problems are greater still. A vote against a resolution has no legal force.Nothing has been said about the consequences if Parliament rejects the terms of a negotiated ‘deal’, nor about its role if nothing is agreed.  Many believe the risks of that are far greater than the White Paper suggests and it sets out no contingency plans.  

Peers propose to tackle these problems indifferent ways with further amendments. Some would make ratification of any deal dependent on Parliamentary approval, or even a referendum. The most robust amendment proposed would require a future Act approving withdrawal with or without an agreement with the EU. 

Our legal team wrote to all active peers last week explaining why such amendments are important. They are now working on a briefing for the Committee Stage debates. 

But even if no amendments are made,Parliament can have a greater future role than Mrs May might like –if it chooses to embrace it. 

That is the conclusion of a new legal opinion which we commissioned, published and sent and to every peer last week. 

We approached our existing QCs – Helen Mountfield and Gerry Facenna - and three of the UK’s most respected EU lawyers – Sir David Edward, a former EU Court of Justice judge,Sir Francis Jacobs, that court’s former Advocate General, and Sir Jeremy Lever, an EU law pioneer regularly instructed by the Government when at the Bar. They were then asked to advise on what Article 50 means by “withdraw from the Union in accordance with its own constitutional requirements” and whether notification of intention to withdraw is reversible. 

Their ‘Three Knights Opinion’ gives some hopeful answers. 

First, notifying intention to withdraw is one thing, but Parliament must authorise actual withdrawal at a later date because, say the Opinion’s authors, “only Parliament that can give legal effect to the removal or conferral of individual rights that necessarily follow from that decision”. Authorisation must await any proposed deal because “meaningful Parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms”. And there must be another Act as “resolutions… cannot change domestic law, nor amend or abrogate existing rights”.

Suppose Parliament rejects the negotiated deal or there is none. At that point there will be “very strong arguments” that the Article 50 notification could be withdrawn. The UK’s constitutional requirements enshrine parliamentary sovereignty and “it would be incompatible with the European Union Treaties fora Member State to be forced out of the Union against its will, or contrary to its own constitutional requirements”. 

The Opinion has had attention in the press,legal blogs and, most importantly in the Lords where it was mentioned by several peers. It is intended to be authoritative, but ultimately any dispute would need to be referred to the Court of Justice for a ruling. Whether that will be needed remains to be seen. So far Parliamentarians have supported the Government’s withdrawal plans.If minds change when the deal becomes clearer, the Opinion could well guide them towards making their sovereignty count when it will matter most.   

In the meantime, we strongly believe the Bill can be improved. The parliamentary sovereignty we and others fought so hard for in Miller,thanks to your support, can be embedded in the Bill, putting beyond argument Parliament’s final say on the acceptability of any proposed deal, or of withdrawing from the EU without one. 

The Second People’s Challenge campaign is all about making this a key issue in the ongoing debates and supporting parliamentarians who want to amend the Bill accordingly. If you have not yet supported it,please think about doing so now, at this critical time. 

This will be the final update on our work to protect parliamentary sovereignty and ensure ordinary UK citizens’ rights were an important consideration in the Miller and Dos Santos case which succeeded in both the Divisional Court and Supreme Court.

Our Second People’s Challenge campaign remains open to help Parliament take control on Article 50. We will shortly be setting out our plans to support members of the House of Lords in amending the European Union (Notification of Withdrawal) Bill, so please consider supporting this important next step. 

On 1 February 2017, the Government’s lawyers agreed what should happen about the Supreme Court stage costs, enabling our solicitors Bindmans LLP to give a final account to our supports as set out below. 

How much money was raised via CrowdJustice? 

The first People’s Challenge was funded with two Crowd Justice campaigns. £150,490 was pledged by 4326 people on the first and £170,550 was pledged by 4918 people on the second. Overall it was one of the most successful crowdfunded legal actions in the UK to date. 

Didn’t the Government have to pay the costs of the People’s Challenge? 

Yes, but only up to a relative small capped amount. 

The People’s Challenge Group was an ‘interested party’ in the Miller and Dos Santos case. In judicial review cases like this one,interested parties generally meet their own legal costs and are not ordered to pay their opponents’ costs, but this can be varied if interested parties put arguments to the court that are different from those of the main parties (which we did in this case). 

To avoid us having to raise enough money to cover an unknown and difficult-to-estimate amount of Government costs as well as our own, our solicitor negotiated two ‘reciprocal costs caps’ with the Government, i.e.maximum amounts each side could recover from the other, were agreed in relation to the Divisional and Supreme Court stage costs. They were £7,500 in the Divisional Court and £5,000 in the Supreme Court. 

Under the agreement reached on 1 February 2017, the Government will pay the full amount up to both caps, so £12,500 inclusive of VAT.

Was the full amount raised via CrowdJustice paid over to the People’s Challenge solicitors?

No, because CrowdJustice deducts fees for its own support of all cases and there are credit card handling fees too. These are approximately 8% of the total raised. See here for details. 

Did the People’s Challenge raise more than it needed once those deductions were made? 

No. The case turned out to cost more than our legal team originally thought it would for a number of reasons. 

In particular, in the Divisional Court: 

• we decided we would challenge the Government’s decision not to make its detailed defence public before the hearing and had to make an application to court to do so– this was successful and that meant everyone could see what the Government was arguing and consider its implications; 

• besides the claimants - Gina Miller and Deir Dos Santos - several groups of interested parties and interveners were involved at the Divisional Court stage and the Court directed that they should avoid presenting overlapping arguments at the hearing, which meant our legal team had to fully consider what they were saying and the legal materials they were relying on, then co-ordinate our lead barrister’s submissions with the other parties’ legal teams ; 

• our legal team also needed to keep abreast of, and deal with issues arising from the Belfast High Court proceedings, Agnew and others and McCord, including applying to that court to access some of the written submissions; 

• the length of the Divisional Courthearing was extended by a day and some court days were lengthened;and

• extra written submissions were made by the Government, including after the hearing, which our legal team needed to consider and address.

Then, in the Supreme Court: 

• there was a dispute over whether we would remain interested parties and so entitled to participate –this was resolved in our favour; 

• the Government shifted the focus of its case onto a new argument based on the idea of ‘conduit statutes’ and that needed to be confronted; 

• we decided to expand the legal team to include an international law expert - Professor Robert McCorquodale -  and another barrister – David Gregory –to help with the response and create our Annex on irreplaceable fundamental rights; 

• several new applications to intervene were made and our legal team had to consider and respond to them – ultimately four were permitted by the Court each of which had to be considered fully; 

• discussions and negotiations then took place between all  the legal teams and the Court as to the amount of time each lead barrister should have, how overlaps could be avoided, and the order of the hearing; 

• the rulings in Agnew and others and McCord were appealed and questions about them were referred to the Supreme Court to deal with at the same time as Miller and Dos Santos – which meant more submissions and material to consider; 

• the length of the hearing was extended from the estimated two days to four;  

• a huge volume of material waspresented to the Supreme Court and much of it needed to beconsidered by our legal team – 13805 pages worth in Miller andDos Santos, 16890 in Agnew and others and McCord, thoughthere was overlap ; and

• extra written submissions were made by the interveners during and following the hearing which our legal team needed to consider. 

How much did the case cost, then? 

To maximise the value of every CrowdJustice donation whilst ensuring there could be a an exceptional legal team of real experts,  our barristers and solicitors agreed to work for rates less than those used by the Government (the latter have been unchanged for over ten years). 

However, there was a huge amount of work undertaken.

In the Divisional Court, the team consisted of barristers Helen Mountfield QC and GerryFacenna QC, Tim Johnston and Jack Williams, along with John Halford of Bindmans LLP assisted by two trainees and a paralegal as needed, Darragh Mackin of Kevin R Winters who helped with Belfast issues. 

The costs up to and including the Divisional Court judgment hearing were: 

• barristers’ fees of £91,674.29 inclusive of VAT; 

• solicitors’ fees of £96,032.88 inclusive of VAT; and

• other costs to progress the case –court fees, copying in specialist libraries, travel and accommodation to enable claimants to attend hearings - £7,298.84 inclusive of VAT.

In the Supreme Court as mentioned above, the team was expanded to include international law expert Professor Robert McCorquodale and another barrister, David Gregory. 

The costs after the Divisional Court judgment hearing on 3 November 2016, up to and including the Supreme Court hearing from 5 to 8 December 2016, were: 

• barristers’ fees of £107,485.08 inclusive of VAT;

• solicitors’ fees of£67.954.25 inclusive of VAT; and

• other costs to progress the case –court fees, copying in specialist libraries, travel and accommodation to enable claimants to attend hearings - £6,776.88 inclusive of VAT.

It follows that total costs of the Divisional Court and Supreme Court were £377,222.22 inclusive of VAT.

The total costs are more than the total of what was raised via CrowdJustice plus what the Government will pay, so what will happen about the shortfall? 

Our barristers and Bindmans have reduced their fees to eliminate the shortfall. 

Most importantly…

Thank you for every penny donated. Whatever happens now in Parliament, this case made history by protecting Parliament’s authority against this and any future governments’ abuse of power.

There could be no People’s Challenge without you. 

We hope to see further support for the Second People’s Challenge. Now that Parliament’s sovereignty has been reaffirmed, it’s time for it to be enforced as it was over 300 years ago.

Over the weekend we reached our initial fundraising target for work to make the parliamentary sovereignty and accountability won back in the Miller case as meaningful as possible. This will enable us to complete work on the guide to the citizenship rights that are at stake at this critical time, publish and disseminate it, to seek legal advice on the safeguards Parliament can impose and support MPs who are interested in taking this forward.

 We have been liaising with MPs, reviewing the amendments others have tabled and the legal team has been drafting an updated version of what we propose which will be available very soon in a further CrowdJustice update.

 Thank you very much for helping us reach our first target and making this important work possible.

You can find the Second People's Challenge here

 Chris, Fergal, Grahame, Paul, Rob and Tahmid

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. 

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!

As has already been widely reported, today an 8-3 majority of the Supreme Court upheld the Divisional Court decision, ruling. They stated: 

“We cannot accept that a major change to UK constitutional arrangements can be achieved by a ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.” 

The Court’s full judgment is here. Here is the Court’s written summary and here is footage Lord Neuberger’s short hand-down speech.  

Legal history has undoubtedly been made. Ordinary people’s voices have been heard on fundamental rights issues, thanks to the People’s Challenge. The majority of the Court said they had grappled with “some of the most important issues of law which judges have to decide”. 

Their judgment: 

• affirms that “because the EU Treaties apply as part of UK law, our domestic law will change as a result of the United Kingdom ceasing to be party to them, and rights enjoyed by UK residents granted through EU law will be affected”;

• puts it beyond doubt that “some rights… will be lost on the United Kingdom withdrawing from the EU Treaties” and that these are, thanks to Acts of Parliament,fundamental domestic rights enjoyed by all UK nationals; 

• explains “complete withdrawal” will therefore “constitute as significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act”; 

• notes that the historical cases show it “is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law”;

• firmly states “[i]t would beinconsistent with long-standing and fundamental principle for such afar-reaching change to the UK constitutional arrangements to bebrought about by ministerial decision or ministerial action alone.All the more so when the source in question was brought intoexistence by Parliament”; and

• concludes tantalisingly, in its main section, with the indication that “what form such[authorising] legislation should take is entirely a matter for Parliament… the fact that Parliament may decide to content itself with a very brief statute is nothing to the point.” 

Of course, Parliament now may also decide on legislation that is not the ‘one line Bill’its lead barrister James Eadie QC promised would be the outcome were the appeal to fail. 

It will not need to seek the devolved administrations’ approval of the proposed legislation, however, because, said the Court: 

“Within the United Kingdom, relations with the European Union, like other matters of foreign affairs, are reserved or excepted in the cases of Scotland and Northern Ireland, and are not devolved in the case of Wales” 

and the Sewell Convention operated only as a political constraint. The Northern Ireland Act’s self determination provisions did not impact on the Brexit process directly. 

In form, then, the judgment is a careful analysis of argument and precedent. But in substance it is no less than a restoration of Parliament to its rightful place as the ultimate decision-maker in our democracy.

What now? The Government will imminently publish an authorisation Bill. MPs will need to decide whether they are prepared to pass it unamended, or to be as courageous as our judges have been and take all necessary steps to ensure they remain in control of the Article 50 process including,critically, the final decision on whether the terms of withdrawal are acceptable. 

We are determined to help them, hence the Second People’s Challenge. 

There will be one final Update to this first campaign with a breakdown of the work we have done so far. Thank you again for everything you have done to make the People’s Challenge not only possible, but effective. 

The UK’s Supreme Court is to give its judgment in the ‘Brexit’ legal challenge at 9.30 AM on Tuesday 24 January.

 The 11-Justice Court will decide whether to reject or allow the Government’s appeal against the ruling that it cannot use the Royal Prerogative to take the UK out of the EU by triggering Article 50 without Parliamentary approval in the form of an authorising Act. The Court is also likely to rule on arguments that the devolution arrangements with Scotland, Northern Ireland and Wales may impose additional safeguards, including the need for legislative consent motions.

The Divisional Court ruling that Parliamentary authorisation is required was won in the High Court by campaigners led by Gina Miller, Deir Dos Santos, the People’s Challenge and others. Bindmans’ Partner, John Halford, represents the People’s Challenge group which is supported by over 5000 CrowdJustice contributors.

 He said today:

 “Parliamentarians need to clear their diaries and make themselves ready. If the appeal is dismissed, as we hope, they will be able to insist on proper proposals, debate, accountability and meaningful control of every step the Government takes from now on in relation to its Brexit plans. British people should expect no less of their representatives.” 

Rumour and speculation abound regarding the Supreme Court judgement later this month.

Apparently the Govt. has asked for and been refused advanced sight of the decision The reason, apparently, was so that it could put contingencies in place.

This does beg the question: why are there no contingencies in place already? Is the Govt. not ready for the Supreme Court decision? There are, after all, only two possibilities.

The court has announced that no one will get a sneak peak at its decision; so, quite rightly, there will be equal treatment for all from UK Justice.

The court has also said that the decision is anticipated before the end of January and 3 working days notice of the decision will be given.

Typically the President of the Supreme Court will then give a summary of the Court’s unanimous view or, if there is a majority decision, what that is and any dissents. We will issue a further update just as soon as we hear more from the Court. 

Theresa May's next big step seems to be her speech on Tuesday. It will be interesting to see whether in doing so she gives our Sovereign Parliament the respect to which it is entitled.

As 2016 draws to a close and we await the Supreme Court's confirmation that the UK's Parliament is the Sovereign authority that Theresa May and her Government must respect and obey, our thoughts turn to the process by which our MPs will determine what is in the best interests of the UK and its citizens.

An overarching theme of the People's Challenge has been that fundamental rights & benefits of ordinary citizens have been almost totally ignored during the debate on the UK's membership of the EU and the (in)actions of the current self-appointed and autocratic government.

Even when those rights have been referred to, it has often been done using the phrase "freedom of movement" with little knowledge, much less explanation, of what that represents, in simple practical terms, to ordinary UK citizens.

The People's Challenge has grounded its case in the fundamental principles of citizenship rights, not just the grand principles but also the more down to earth, everyday implication and implementation of those grand principles.

These rights have been in place for long enough that many people have enjoyed them their whole lives, and many others have forgotten how things were before we had them.

We are now planning out the next stage in our challenge to the UK Government and the Brexiteers and the protection of the fundamental rights and benefits we all have as citizens of the EU.

This will show that EU citizens have rights that extend far beyond the simple phrases "freedom of movement" and "right to remain". Furthermore, it will demonstrate that for many people these rights, once lost because of withdrawal from the EU, could not be restored or replicated by actions of the UK Government.

The work will involve, amongst other things, further legal work to produce a detailed document that can be turned into a definitive "plain English" guide to the fundamental rights enjoyed by all EU citizens.

We will also be assessing the extent to which these rights are protected as acquired rights under EU and International law so that we know what we can expect if the UK, through Government incompetence or intention, falls outside not only the EU but also the Single Market.

We are investigating other issues raised by Brexit and the government's (in)actions, advice is being sought and we will keep you informed as things develop.

Now, however, “tis the season to be jolly”. We wish everyone a happy, healthy and peaceful Christmas.

As was once said “Where there is discord, may we bring harmony. Where there is error, may we bring truth. Where there is doubt, may we bring faith. And where there is despair, may we bring hope”

Have a wonderful festive season and see you again in January!

Very best wishes from us all,

This final report summarises the key developments in court on Wednesday and Thursday. The transcripts for both days are here and here.

Lord Pannick QC finished his submissions on Wednesday morning, covering the legality of the use of prerogative powers to frustrate legislation, the absence of any Ministerial power to trigger Article 50 in EU-related Acts of Parliament made after 1972 and the need for an Act, rather than any other Parliamentary step, such as a motion in both Houses, to give the authority the law demands. 

He began with a guided tour of the 1972 European Communities Act, explaining how section 2 protected the Act against being repealed by implication through later Acts of Parliament, making ministerial action to set it aside very unlikely, and that section 3 would make no sense at all if the Government is right.  He then took the court to the European Parliamentary Elections Act 2002.  If the Government is correct, he said, Article 50 could be invoked nullifying every right it created despite the Act remaining on the statute book.  Similarly, the Communications Act 2003  imposed regulatory functions on Ofcom to enforce EU law which would be senseless were Article 50 invoked without Parliament first deciding how to deal with them. Parliament needed to be fully involved so that its intentions in passing such legislation were not frustrated.

Next, Lord Pannick discussed the De Keyser case. “Have I been mispronouncing that case all my adult life?” asked Lady Hale. “You say De Keyser, I say De Keyser” quipped Lord Pannick, making the first joke in legal history to be reproduced for charity in T-shirt form.

“Whatever it is called” he continued “that is not the only type of case where the courts will impose limits on the exercise of prerogative power. Here, we submit there simply is no prerogative power to act under a treaty so as to defeat, nullify, frustrate statutory rights. That is one additional principle. Another principle is where the exercise of prerogative powers would frustrate the provision made by Parliament; that is ex parte Fire Brigades Union.”

Mr Eadie was therefore wrong, said Lord Pannick, to argue that the De Keyser case set the only limits on prerogative power. As for the argument that post-1972 legislation showed Parliament setting limits on the prerogative but deliberately choosing not to  in relation to Article 50, this was wrong too because the Green Paper for the Constitutional Reform and Governance Act 2010 showed  the Government’s intention had been only to replicate the Ponsonby Rule  and was mindful of further  legal protection where there are “treaties that require changes to UK law… the enactment of prior legislation which, of course, requires the full assent of Parliament”. Other statutory changes had been made to increase the powers of the then European assembly.

Lord Pannick and the Justices then debated the effect of the 2015 EU Referendum Act.  Might it be said that the 1972 Act had ‘clamped’ the Government’s power to use the prerogative to change law but the 2015 Act had “dismantled” that clamp, asked Lord Kerr. Lord Pannick said that must be wrong because the 2015 Act said nothing at all about empowering ministers, less still changing 40 years of constitutional arrangements, and would need very clear language to have that effect. What legal effect did it have then, Lord Neuberger wondered. Lady Hale beat Lord Pannick to the answer: “But the Act did have an effect.  It provided for the referendum.”

Last, Lord Pannick discussed what would need to happen were the court to dismiss the appeal - nothing short of express parliamentary authorisation for the invocation of article 50 would do and that would need to be in the form of an Act, not a resolution because only an Act can change the law.  Lord Sumption summarised this point neatly a little later: “resolutions are political acts, whereas legislation directly affects the law.” 

Dominic Chambers QC followed with submission for Mr Dos Santos, tracing the history of the parliamentary sovereignty principle, the way it dovetailed with EU law (“EU law rights solely take effect under English domestic law through the will of Parliament”) and the 2015 Act. It was identical in structure and purpose to the Act which set up the 1975 EEC referendum, that time, the Government had accepted Parliament would need to pass further legislation had there been a ‘leave’ majority.

Next  the court heard from QCs David Scoffield and Conan Lavery arguing the appeals brought against Mr Justice McGuire’s judgment in the McCord, Agnew and others case which  was decided a few days before  the Divisional Court gave judgement and came to a different conclusion. Mr Scoffield first argued that the Northern Ireland Act 1998, like the 1972 Act, was not neutral on the U.K.’s continued membership of the UK – it assumed that it would be a member and created rights and duties based on the assumption with the effect that it would need to be repealed, or substantially amended, before notice could be given under Article 50.  It was a “further conduit” for EU law to pass into UK law. Both the Good Friday Agreement and the British-Irish Agreement reinforced this, he said, as was recognised by Lord Bingham in the Robinson case.

Secondly, invocation of Article 50 without Parliamentary authority would “circumvent” the arrangements had been made with Northern Ireland for legislative consent motions endorsing future constitutional changes. In other words, the Government was attempting to use a prerogative shortcut when the lawful route involved consultation with the representatives of the people of Northern Ireland. Mr Lavery said he went even further. “It would be unconstitutional to withdraw from the EU without the consent of the people of Northern Ireland”, he submitted, because “being part of the EU was “part of a constitutional settlement” envisaged by the Good Friday agreement and there had been “a partial transfer of sovereignty”.

They were followed by the Lord Advocate of Scotland, James Wolffe QC, who argued "the power to change the laws of Scotland were given to parliament, and to those who parliament has authorised, and not to the Crown". That sounded in the Claim of Right Act 1689 and the Act of Union of 1707. The Sewel Convention meant “that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament”. When it came to invocation of Article 50 “the United Kingdom has to make that decision in accordance with its constitutional requirements. I say that those constitutional requirements include an act of parliament” and that Act had to be preceded by a legislative consent motion in the Scottish Parliament. 

Mr Wolffe’s submissions were concluded on Thursday morning. He was followed by Richard Gordon QC for the Welsh Government who made an opening submission that the case was “elementary, a child of six, with respect, could understand this point”. Lord Carnwath was sceptical “your child analogy does not really work, because obviously the child is told he cannot go out in the garden, still has the power to go out in the garden, and indeed he may well disobey the constraint and do it.”

Mr Gordon then developed similar arguments to those of the Scottish Government. Consultation with the devolved administrations over certain decisions was "the only glue" holding together the UK constitution. By evading the, the Government was trying to "drive through" constitutional change of a "seismic nature". But some Justices wondered what this added to the main Miller argument. Lord Mance asked “If we agree with Lord Pannick and reject Mr Eadie, your case is largely unnecessary, except insofar as you rely on the Sewel convention." Mr Gordon replied “Yes. Yes.”

Next was People’s Challenge QC, Helen Mountfield, the first and only female advocate to speak in the case (though not the only barrister – Anneli Howard and Jess Simor QC are in the Miller and Dos Santos teams).

“My clients are a group of ordinary British citizens, and a Gibraltarian citizen.” Helen began.  “They are all people who will be affected, in very significant aspects of their lives, by a decision to leave the EU and the profound changes that this decision will make to the law of the United Kingdom and their rights as European citizens. They have been crowd-funded by many thousands of relatively small donations from private individuals.”

They were not asking the Court “to decide whether, in the light of the result of the referendum, the United Kingdom should leave or should not leave the EU.   Nor is it being asked to compel either the government, or Parliament, to do anything. All the Court is being asked to do is to consider whether, as a matter of law, an intended act of the Appellant, to notify the EU of a decision to leave on behalf of the UK, would be lawful in the absence of express statutory authority.” 

By arguing that authority was not needed Mr Eadie “invites this court to find that ‘the Government can  trigger Article 50 in exercise of the royal prerogative, even though this will alter domestic law, because it has what he described as “untrammelled” or “unconstrained” prerogative power. We disagree. We reject the false assumption that the foreign relations prerogative extends to permit the government to dispense with national law.” 

Mr Eadie had chosen the wrong starting point for the legal analysis “because it conveniently by-passes the biggest hurdle which he faces in his appeal.” The right one was to ask “what are the limits if any of the prerogative power to make and unmake treaties?” 

The answer to that was that “there is no prerogative power to change or dispense with the law as it stands outside the prerogative, whether that pre-existing law is contained in the common law or in Acts of Parliament”. That was clear from the ‘historical inquiry’ Lord Bingham had said was needed in all case where prerogative power was in dispute. Mr Eadie had accepted that, Helen added, “but it is striking that despite positively commending that approach to you, Mr Eadie did not undertake any such enquiry, but put his claim for a wide untrammelled prerogative to change the law at the basis of general assertion.” 

The People’s Challenge team had undertaken the inquiry, she said, and the results were striking, Helen explained. The Case of Proclamations, the Bill of Rights, Article XVIII of the Union with Scotland Act 1706, the King v London County Council, Bancoult No 2., Nicklinson, Pretty, Fitzgerald v Muldoon, Fire Brigades Union and Hayden all show that the prerogative cannot generally be used to dispense with or suspend the law of the land. And there was nothing special about the foreign relations/treating making prerogative in this sense as the authorities in our Written Case demonstrated. There was an “orthodox” answer to the question the case raised. The historical cases gave the answer: the foreign relations prerogative cannot be used to change the law or to vary the sources of law which apply in the UK.

Further, though no judge had been asked to decide whether the UK could withdraw without an Act of Parliament, a series of them had said they assumed that was so. For example, in Blackburn Lord Denning had said “[i]f her Majesty’s Ministers sign this treaty and Parliament enacts provisions to implement it, I do not envisage that Parliament would afterwards go back on it and try to withdraw from it. But, if Parliament should do so, then I say we will consider that event when it happens. We will then say whether Parliament can lawfully do it or not.”

Helen’s second key submission was that, by triggering Article 50, the Government would in fact dispense with law, and remove EU law rights. The People’s Challenge group and those who support them “consider that their EU citizenship is a fundamental part of their identities and that, if they are to be deprived of it, their elected representatives in Parliament should, in law, be responsible for that”, she told the Court.

EU law, and the rights that flowed from citizenship “is part of domestic law so far as this court is concerned, ‘because Parliament has so willed’” as Lord Mance had said in the Pham case.

Yet the Government argued that by passing the 1972 Act “Parliament simply created an empty legal vessel, which the Minister could, at any time, fill or empty at will by using his foreign relations prerogative.” That, Helen submitted, “is not right on the language of the Act, and it is not right when you look at statutory intention.” It could not be squared with the EU Treaties themselves becoming a feature and source of law under the 1972 Act, its purpose or the very serious consequences for rights that could not be replicated if the Government was correct.

Helen finished her submission by responding to two questions the Justices had raised earlier in the week. First, could the 2015 EU Referendum Act in some way revive or legitimize use of a prerogative power put into abeyance by the 1972 Act? The answer was ‘no’. There was no power to do away with rights in the first place, but even if that was wrong, clear, and express statutory language was needed. The 1972 Act was a constitutional statute. It could not be overridden by assumptions or implications. To hold that the 2015 Act, by implication had such an effect would be an act of judicial legislation. As for the legislative arrangements for making a decision on whether another state could withdraw from the EU, these had nothing to do with the UK’s own withdrawal.

The People’s Challenge was seeking “to uphold the Divisional Court’s judgment not only for its determination of the issue before this court, but also because of the importance, in a democratic society, based on separation of powers and the rule of law”. The Court should dismiss the Government’s appeal.

There was an immediate and positive reaction to Helen’s submissions on social media and later from press commentators such as the Guardian’s John Crace.

Helen was followed by Manjit Gill QC speaking for non-EU national carers of EU national children. “This is no time to turn a flexible constitution into a slippery one and let go of its bedrock fundamentals”, he argued. Patrick Green QC for Fair Deal for Expats then argued that ministerial involvement in EU law making was illustrative of parliamentary sovereignty in action, not unrestrained use of the prerogative.

Lord Keen QC and James Eadie QC then mounted their last stand for the Government on devolution issues and the main issues in the case respectively. “We do not assert a power to repeal the Dangerous Dogs Act,” Mr Eadie began, taking the Court back to one of Lord Pannick’s first submissions about that legislation having greater constitutional status than EU law if the Government was right. But it backfired. Had the Dangerous Dogs Act being an EU directive, but identical, it could be disapplied using Article 50, he accepted. Mr Eadie’s closing gambit was to draw attention to Wednesday’s House of Commons resolution calling on the Government to give notification. This too failed to impress the Justices. “If the resolution had been enough for your purposes, then there would have been no need for this appeal” Lord Sumption shot back.

Lord Neuberger adjourned the case indicating that judgement would be forthcoming in the New Year as soon as possible.

Before then, there will be one further update discussing what could happen next, depending on the outcome.

The legal team has been working overnight on the submissions to be made to the Supreme Court today, so an update summarising yesterday’s and today’s hearing will follow tomorrow.

Our lead QC,  Helen Mountfield will speak from 12.00 noon for 45 minutes  can be watched live on line. Subject to responding to the Justices’ questions, her submissions will cover:

• who the People’s Challenge group are and the  fact that they are crowd-supported;
•  the importance of the legal principles which divide power between the limbs of the state, and in ensure that they do not illegitimately intrude onto one another’s territory;
• the proper,  constitutional role of Judges;
• why  the government argument for  “untrammelled”  and “unconstrained”  prerogative power begins at the wrong starting point -  conveniently bypassing the most significant legal hurdle the government has to jump over  which is to show that there is prerogative power to take away ordinary people’s statutory citizenship rights;
• the right starting point is a historical inquiry to establish whether the prerogative has ever gone that far in modern times  – it has not,  as the cases show;
• there are no cases that support the Government position  that the prerogative can be used to take away statutory rights -  and the only one they have relied on, McWhirter does not actually help them;
• triggering Article 50 would  destroy citizenship rights -  rights which the courts have recognised as fundamental;
•  they cannot be replaced as our Annex shows;
• the 1972 European Communities Act  does not allow citizenship  rights to be taken away by executive action -  its purpose  and language clearly shows that  it was the means for granting those rights and making EU law a source of domestic law which all UK  nationals could benefit from – and enforce;
• if the Government is right, the consequences do not stop with Article 50 -  it will be able to  strip away almost any right by  agreeing to do so in a treaty or withdrawing from a treaty;
• the 2015 Referendum Act does not give the Government any authority to take this sort of step – in relation Brexit or otherwise – and  if that had been Parliament’s intention it would have said  in clear language of the kind used in the  Acts of Parliament which established  the alternative voting referendum and  future referendums on a united Ireland; and
• the People’s Challenge Respondents ask the Supreme Court uphold the Divisional Court’s judgment  not only for its determination of the issue before this court, but also because of the importance, in a democratic society, based on separation of powers and the rule of law. EU citizenship is a fundamental part of our identity. If we are to be deprived of it, our elected representatives in Parliament should, in law, be responsible for that.

As the video and transcripts of the Supreme Court hearing’s second day demonstrate, a packed court room is no guarantee of rapt attention in a case that involves dozens of technical points and bundle references as well as the most important constitutional principles.

But members of the public present and on line watchers who stayed with the hearing until 2.45PM were treated to a masterclass in advocacy by Lord Pannick QC, Gina Miller’s lead barrister.

Within minutes he had  broken the ‘silence of Parliament’ much relied upon by the Advocate General and MrEadie QC with  the barking of dangerous dogs, the clacking of lobster claws and the puttering of an 19^th century steamboat engine. 

The day began with further legal argument from James Eadie QC for the Government, however. As this is his client’s appeal, he will also be the last to speak on Thursday, replying to the arguments others have made. He started yesterday with more criticism of the Divisional Court’s approach.

It had been wrong, he said, to characterise what Parliament had done in 1972 as introducing “EU law into domestic law in such a way that this could not be undone by the exercise of prerogative power" as all rights were always “dependent”on our relationship with other European states. They were “inherently limited”. The Government could, and now can and will, “remove a swathe of those rights”. 

Mr Eadie was questioned about the relevance of the Great Repeal Bill, which the Government plans to use to preserve some EU rights in the UK. The Prime Minister’s statement on it might be though to be underpinned by“eternal optimism” he said, as he associated work would“involve years of entertainment to come”. He accepted Parliament’s future actions could not help interpret a 1972 Act,unsurprisingly. 

Baroness Hale and Lord Sumption both pointed out that many rights could not be replicated, would not develop or be enforceable in the European Court – a point discussed in detail in the People’s Challenge Written Case Annex. Mr Eadie said “I accept that”.EU rights would be dealt with “by policy area”. Civil servants and ministers “will look at, I don't know, farming… They are going to say: what are we going to do now about farming?”

None of this can be reassuring to those who currently rely on EU rights for their employment, business activities or where they live. The Justices were also troubled about his submissions on the Bill. “I think you’ve just given two diametrically opposed answers to the same question in the last five minutes”,  Lord Sumption observed. “We’ll have to look back through the transcripts and see which one we agree with then,” Lord Carnwath quipped. 

In contrast to the Great Repeal Bill, Mr Eadie told the Court, the Bill that would be needed to authorise invocation of Article 50 if the Government loses its appeal would have “one line” adding: 

“[i]t may be that would lead to all sorts of parliamentary complications and possible additions and amendments and so on, but that is the solution”. 

But what Parliament does with any one-line Bill is, of course, for it to decide. 

Mr Eadie went on to argue that the Divisional Court had misinterpreted a series of cases to come up with a new, broad constitutional principle that “you cannot alter the law of the land” using the prerogative. It was: 

“uncontroversial that the prerogative cannot be used simply to countermand laws passed by Parliament… but one needs to exercise some caution, as we have already seen, in a variety of different and perhaps more or less subtle ways, and sometimes one can say it is altering a fact, and sometimes one can say it is doing something in a slightly special context, and context is all, of course… We also do not accept that there is any principle  corresponding to that identified by the divisional court, to the effect that the prerogative to make or withdraw from treaties cannot be exercised so as to have the effect of altering domestic law.”  

Mr Eadie showed the Court a single Canadian case, Turp, arguing this demonstrated withdrawal from an environmental treaty could happen despite the Canadian Parliament having passed an Act to give effect to it. But Lord Sumption pointed out: 

“presumably the Act giving effect to Kyoto would have been unaffected by the withdrawal from the treaty on the international plane.”

Mr Eadie then showed the Court a note on the EFTA agreement. Lord Mance asked: 

“Did the EFTA scheme involve any sort of directly effective rights such as is the subject of section 2 of the 1972 Act?”

Mr Eadie replied “Not in that way.”

The Justices did not appear to find either example particularly helpful as a guide to what the law requires in the special context of EU law, where rights are granted by statute. 

Much was made in the Government’s Written Case of blogs by Professor John Finnis drawing an analogy with double taxation treaties. In the end, Mr Eadie decided to say little about them: 

“My Lords, I think given the time, what I would prefer to do if I may is leave double taxation as not least because of the incredible complexity of it, and it would take me quite some time to walk you through it, and I would probably be asked all sorts of answers I didn't know the answer to.”

Mr Eadie was followed by Lord Keen QC, the Attorney General for Scotland, supporting the Government on Scottish, Welsh and Northern Irish issues, then John Larkin QC, Northern Ireland’s Attorney General who elaborated on the position in Northern Ireland.  There were no metaphorical fireworks in their arguments, simply a series of flat denials: “it’s perfectly clear that the matter of foreign relationships, foreign affairs and our relationship with the EU is not within the competence of the devolved legislatures”, so the Sewell Convention had no effect, even though it now had statutory force; the special responsibilities of the devolved governments for EU law did not stop the UK government from withdrawing from the EU; the British-Irish Agreement; the Belfast(Good Friday) Agreement had no legal force, they said; and in any case, those agreements, despite anticipating the UK and Ireland being in the EU, did not depend on that remaining so. 

Before finishing his submissions and, oddly, walking out of the courtroom, Mr Larkin delivered an impassioned plea to the court not to permit“constitutional change” by thinking, as he himself sometimes had, that “a well placed litigation lever can move the world”. 

But this misses the point of the Article 50 case. The claimants, interested parties and most interveners are not attempting to change anything - they want to preserve Parliamentary sovereignty as it has been for hundreds of years. 

This was one of the themes of Lord Pannick’s faultlessly delivered submissions which are well worth watching on the Supreme Court’s catchup video feed. Opening with “If the government is right…the 1972 European Communities Act has a lesser status than the Dangerous Dogs Act”,  he then told the Court he would be making seven overarching points. 

First, the 2015 Referendum Act gives ministers no prerogative power to trigger Article 50. That step is not mentioned. 

Secondly, while prerogative power is used to enter into new treaties such as the EU treaties,  it cannot be used to change the UK constitution.Developing this, he told the Court: 

“Now, it is of course rare to find examples of the treaty-making prerogative being used by ministers in an attempt to frustrate statutory or common law rights without authorisation from Parliament.  This is a rare phenomenon and it is rare because ministers normally recognise and respect the basic constitutional principles that are set out from the Case of Proclamations onwards, but there are examples in the books of ministers stepping over the line or the Crown stepping over the line.”

He then took the Court through the Parlement Belge and Walker v Baird cases about an impounded boat and lobster fishing regulation. Eve in these obscure contexts, the Courts had been careful to ensure the Government acted within its powers. 

Thirdly, he submitted the Government must demonstrate Parliament has expressly handed over powers to ministers to overwrite legislation. It had not here. 

Fourthly, Parliament did not intend the 1972 Act to create ministerial prerogative power to sweep away membership. 

Fifthly, Ministers cannot use prerogative power to frustrate legislation. 

Sixthly,  none of the European Union-related acts created over the last four decades give ministers power to trigger Article 50. 

Seventhly, only an Act of Parliament can take away the rights linked to the EU that have been created since 1972 membership: “[i]t is so obvious, so basic… these are matters for Parliament."

Lord Pannick spoke for much of his one hour and 45 minute slot uninterrupted, covering the first four of these points. On the scope of the prerogative, he said:

“we for our part commend to the court the valuable historical analysis in Ms Mountfield's written case… she will speak in due course”. 

The remaining three of Lord Pannick’s ‘magnificent seven’ arguments will be developed later this morning. 

Yesterday was the first of four intense days of legal argument from the opposing legal teams in the Article 50 case. The hearing can be viewed on line and there has been insightful Twitter coverage from Jolyon Maugham QC, Schona Jolly, the Independent and live updates from the Guardian which will continue through the week. There was massive coverage in the press and other media from the 80 journalists at Court. Transcripts of every word spoken (including, unfortunately, what pass for jokes in legal circles) are available on line.

These People’s Challenge team reports have a different purpose, which is to provide our CrowdJustice supporters with a concise insider’s overview of how the arguments are developing and the Court’s reaction.  

Lord Neuberger opened the hearing by making an Order to protect the identities of some of the parties (the AB children and carers) and address information relating to others, including the People’s Challenge group. He explained:

“We have made this order largely because various individuals have received threats of serious violence and unpleasant abuse in emails and other electronic communications. Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law.  Anyone who communicates such threats or abuse should be aware that there are legal powers designed to ensure that access to the courts is available to everybody.”

He then welcomed those present in court and watching on line, acknowledging the public interest, but emphasising that the “wider political questions” surrounding Brexit were “not the subject of this appeal”. Rather it concerned: “legal issues and, as judges, our duty is to consider those issues impartially and decide the case according to law”. Every party to the case had accepted the 11 Justices were impartial and should not recuse themselves, he noted. 

These themes were picked up in the opening of the Government’s case by the Attorney General, Jeremy Wright QC, who acknowledged the claim concerned “a clear question of law” that had been “properly bought” to court for determination. This marked a significant, and welcome, shift from the position taken by the Prime Minister some months ago.

Mr Wright then gave an outline of the Government’s case. There had been an electoral commitment to hold a referendum and to implement the result. The product was the 2015 EU Referendum Act, and a majority of those voting had voted to leave, something the Divisional Court had treated as “legally irrelevant”  when concluding the prerogative could not be used to bring about departure. It has been wrong to do so, he argued. There were “legitimate public expectations” to consider.

As to the prerogative, he said, this as not an ancient relic, but a contemporary legal necessity “essential to the effective conduct of public business” in a dualist system of law (where international legal obligations between states and those enforceable by citizens are separate). The prerogative “operates wholly in accordance with parliamentary sovereignty” because Parliament understands its utility, but will limit it when appropriate, albeit “sparingly”. This was a matter of practicality too:

“The need for the Government to maintain control over strategy, policy and operational matters in conducting our bilateral or multilateral international relationships is, we say, clear and compelling.”

Of course, none of these statements of principle are an answer to the People’s Challenge case: that Parliament has legislated to grant citizenship rights that cannot be overridden by the prerogative.

On this, Mr Wright said that Parliament had positively chosen to control the prerogative in relation to treaty notification and ratification using the Constitutional Reform and Governance Act 2010, but only up to a point. The controls it introduced did not prevent the invocation of Article 50, so Parliament must have chosen not to control that. Other opportunities to legislate and introduce controls had not been seized.

This became a major theme of the Government’s case throughout the day. According to Mr Wright and Mr Eadie QCs, Parliament’s ‘silence’ on the use of the use of the prerogative to invoke Article 50 meant it remained sovereign, but that sovereignty was manifesting itself in passive, mute acquiescence to the Government’s use of prerogative power in this context.

The People’s Challenge has a clear, principled answer to this: the Government’s case has the wrong legal starting point. It must show the foreign relations prerogative allows it to take away citizens’ statutory rights in the first place. And it cannot.

Mr Wright went on to make the first novel point of the Government’s case. Parliament, he said:

“… passed the 2015 Act in the clear knowledge, and expectation, that the process by which the exit from the EU would take place was set out in Article 50 of the Treaty on European Union. It knew what would happen when that process was begun, and it took no step, made no provision, imposed no constraint, to prevent the Government giving notice to do so in the usual exercise of prerogative power.”

But no evidence has been produced that Parliament, or even the Government, intended that the prerogative would be used to implement the 2015 Act if a majority voted leave.

“I say Parliament can stand up for itself”, Mr Wright concluded. The exercise of its sovereignty to remain silent and not control the Government’s use of the prerogative should be “respected”. 

James Eadie QC then rose to develop the Government’s appeal in detail. Unlike Mr Wright, he was frequently interrupted with penetrating questions, particularly from Lord Mance, Lord Sumption, Lord Carnwath and Lord Neuberger. Here are some highlights.

Opening his submissions, Mr Eadie descried the prerogative as “a power to act according to discretion for the public good" relying on the Burmah Oil case. “Suspicion of prerogative powers accompanied by judicial concern at their exercise” was misplaced. They are “essential”. 

A “conduit” allowing “transposition” of the fruits of negotiations at international level into UK law was also needed, he said, but that was the real function of the European Communities Act 1972. It created no rights at all.

Mr Eadie then gave other examples of three other “conduit” statutes. Lord Mance asked:

 “Does any of your three examples cater for a situation where the continued operation of domestic legal provisions is affected by whether or not the international position remains the same?”

Mr Eadie accepted none did. The 1972 Act was different in that sense.

Importantly, Lord Mance then asked whether a conduit statute could be used to take away rights completely, leaving none behind (i.e. the effect of invoking Article 50). Mr Eadie said that could happen. Other Justices questioned whether it really was his case that the substance of EU membership could be hollowed out in this way. Lord Mance explored the implications of Mr Eadie’s argument further:

“Mr Eadie, do you say that the European Communities Act 1972 was neutral as to whether the United Kingdom was a member of the European Communities?” 

to which Mr Eadie gave this startling reply:

“We say it proceeded on the fundamental assumption that that ultimate decision on the international plane was a matter for Government.”

In other words, membership of the European Community and then the European Union has, for 40 years, been a Governmental decision, not a Parliamentary one. This was no slip - Mr Eadie went on to describe the 1972 Act, one of the most debated in recent history when at bill stage, in this way:

“Parliament was… merely facilitating the membership, should the Government, in the exercise of its treaty prerogative, take the United Kingdom into the EEC.”

Mr Eadie’s remaining submissions focussed on the 1920 De Keyser’s Royal Hotel case, which involved seizure of property in wartime, arguing that it established a principle that the prerogative was unrestricted unless Parliament had imposed control “expressly or by necessary implication.” 

Picking up a point from the People’s Challenge Written Case, Lord Sumption said:

“You surely have to ask: what are the limits if any of the prerogative power to make and unmake treaties?  If the position is that the prerogative power is only as broad as it is, because the assumption is being made that it does not alter domestic legal rights, then, you know, one may well arrive at a situation in which you just never get to the question of what the statute says, unless it is being suggested that it actually confers a prerogative right to change the law which would not otherwise exist.”

In other words, was the Government subsisting that the law of the land could be changed using the prerogative? Mr Eadie’s response was candid:

“Prerogative power in the field of making of treaties, ratification of treaties and withdrawal from treaties, is and always has been a general power, untrammelled by any such implication which can have…  impacts into domestic law through any or all of the various models that we have analysed our in our cases.” 

To sum up the Government’s case so far, then, prerogative power is “untrammelled”, the law of the land can be changed using it, Parliament was “merely” the facilitator of the exercise of that power when we joined the EEC and has now silently consented to its use to take away all UK citizens’ EU rights. There is something unsettlingly Orwellian about the Government’s case so far and there is nothing to suggest the Justices are persuaded.

Mr Eadie’s submissions continue this morning, before he hands over to Lord Keen QC, the Advocate General for Scotland, and John F Larkin QC, Attorney General for Northern Ireland. Both support the Government and will argue against the devolution arguments put by the Scottish and Welsh Governments and the Northern Irish appellants.

The UK’s 11-Justice Supreme Court will hear the Government open its appeal today against the ruling that it cannot use the Royal Prerogative to take the UK out of the EU by triggering Article 50. If the ruling stands, the process will be subject to parliamentary control and oversight and primary legislation will also need to cater for  the EU law rights and duties woven into the UK’s devolution arrangements.

Arriving at Court, the solicitor representing the crowd-funded People’s Challenge group, who are resisting the appeal alongside Gina Miller and Dier Dos Santos, said they were “confident” its Justices would apply the “clearest principle” of the unwritten constitution - “the empowerment of Parliament to protect citizens’ rights.”

Over 5000 people have supported the People’s Challenge group via CrowdJustice, a crowdfunding platform for public interest cases. The group’s members were formally recognised as ‘interested parties’ at a preliminary hearing last July, and participated to ensure ordinary people’s EU citizenship rights were fully taken into account by the judges dealing with the case.

They have made detailed written submissions arguing that Divisional Court’s ruling should stand complementing those of the Miller and Dos Santos teams and the intervening Scottish and Welsh Governments. The submissions are also backed by an Annex cataloguing the “fundamental and irreplaceable EU citizenship rights” at stake in the case.

The group consists of UK nationals Grahame and Rob Pigney who live in France, Paul Cartwright, a Gibraltarian national who runs Brex-IN, Christopher Formaggia who lives in Wales, Tahmid Chowdhury, a London student and Fergal McFerran, president of the NUS-USI based in Belfast.

Grahame Pigney said today:

“CrowdJustice has allowed us - ordinary UK Citizens and our supporters - to argue that our individual personal rights and benefits are so important that the timing and conditions of a Brexit should be decided by our democratically-elected Parliament rather than a self-appointed Government that wants to behave as if the Glorious Revolution of 1688 had never happened and the Bill of Rights was never written.”

John Halford of Bindmans LLP, the group’s solicitor, said: 

“This case puts Britain’s unwritten constitution and its highest court to the test, but we are confident both will withstand it – the clearest principle of that constitution is the empowerment of Parliamentary sovereignty to protect citizens’ rights.”

Julia Salasky, CEO of CrowdJustice, said:

"Thousands of people have donated to the case, and therefore had the chance to take part in one of the most significant constitutional cases of our time.  Whatever the outcome of the Supreme Court appeal, it's a victory for the justice system that The People's Challenge is being represented - and we're delighted that it was made possible via CrowdJustice."

The People’s Challenge is represented by John Halford of Bindmans LLP. Our team of barristers is headed by Helen Mountfield QC plus Gerry Facenna QC, Tim Johnston and Jack Williams with David Gregory joining the team to assist with the work for the Supreme Court hearing.

There are others who are also challenging the Government; Gina Miller, Dier Dos Santos, George Birnie with yet more named as part of the respective challenges plus others who have joined as interveners now the Government has appealed to the Supreme Court.

Each of the participating groups, whether Claimants, Interested Parties or Interveners, have their own independent legal teams and they participate as such in court. Obviously there is common ground between the various parties, so the legal teams co-operate to avoid unnecessary repetition.

The People’s Challenge focuses on the threat the Government’s use of the archaic Royal Prerogative poses to the Citizenship rights of UK Citizens whether they are living in the UK or Overseas.

The People’s Challenge raised the funds to challenge the Government through the Crowd Justice website. Nearly 5,000 individuals pledged £170,500 so that we could argue case to protect people’s citizenship rights in the Divisional Court. We have raised another £150,500 in pledges from some 4300 individuals so as to be able to defend the Divisional Court’s decision against the Government’s appeal to the Supreme Court.

Next week we see the penultimate stage in this challenge we have mounted on whether the Government has the authority to use ancient Royal Prerogative rights to trigger Article 50 and take the UK out of the EU.

The Supreme Court has taken the unprecedented step of assembling the 11 Supreme Court judges to hear the Government’s appeal against the Divisional Court’s decision that only the UK’s Parliament has the authority to trigger Article 50.

This decision is of enormous constitutional importance because it goes far beyond the comparatively narrow question of who can trigger Article 50.

The arguments that the Government are now making imply that the Government can remove or modify any rights conferred on UK citizens by Parliament or by common law.

Among those putting these arguments forward are MPs and Ministers who in the past have argued that the Government’s use of prerogative powers should be further constrained, so as to re-establish the authority of Parliament in the face of the creeping extension of executive powers by successive governments.

Our solicitor, John Halford, wrote a piece yesterday and has published it on the Bindmans blog - What those with power always want .

As expected, thousands of people will want to follow the Supreme Court hearing, far more than can be accommodated in the Supreme Court building on Parliament Square.

Fortunately, Supreme Court hearings are streamed on the web and it is possible to watch next week’s hearing in Court One via this page Court 1 - Supreme Court Live on the Supreme Court’s web site.

We have been overwhelmed and sustained by the enormous number of messages of support and help from our backers and supporters, as well as the generosity which has funded the challenge. I have not yet been able to respond to all these messages and hope to do so in the coming weeks.

Please rest assured that they have all been read and that the suggestions on how to build and reinforce the arguments we are making have all been taken into account.

Grahame Pigney on behalf of the People’s Challenge.

Suppose the Government is right about the legal arguments it makes in support of its appeal. Then, unless there is some significant, but completely unforeseen, political development between now and 31 March 2017, a simple letter will be sent giving notification of the UK’s  intention to leave the EU. 

The wording will not be elegant. No regret will be expressed. And two years later, unless other EU states agree to a different outcome, UK citizens will lose their EU citizenship rights. Parliament may, by then, have passed a Great Repeal Bill that mimics some of those rights in UK law,  but it cannot do so  comprehensively  or perfectly.  The rights that many UK nationals  depend on abroad to work, study, trade,  receive and provide services,  live with family members,  receive healthcare, retire and much besides will be gone in their current form. 

In the Divisional Court,  the Government argued that these concerns were exaggerated. Its third QC, Jason Coppel, submitted that the People’s Challenge had:

“seriously overstated the effect of the decision to withdraw from the EU and the notification of that decision on the rights which are conferred on individuals by UK domestic law…. The proposition that I want to put to you first of all is that UK citizens have very few rights as EU citizens which are enjoyed as a result of the 1972 Act. Of those rights, none are directly affected by notification and as a matter of law, all could be preserved upon withdrawal, should Parliament so choose.” 

Our view is that this is simply wrong.  That is partly why the EU law specialists in our team, Gerry Facenna QC and David Gregory, produced the Annex to our Written Case cataloguing EU citizenship rights and explaining their  fundamental and irreplaceable nature. 

That document serves an even more important purpose, however, which is to show the Court  just how deep-rooted EU citizenship rights have become, thanks to the series of Acts of Parliament passed so they could grow in the soil of England,  Scotland, Wales and Northern Ireland and UK territories overseas, like Gibraltar. 

The consequences of the Government being right do not stop at a Brexit without Parliamentary control, oversight  or authority, however. To establish the Royal Prerogative can lawfully be used to invoke Article 50 means that the Government has to go much further than arguing it can be used for that purpose. Paragraph 16 of its written case makes this clear:

“… the true  position is that acts of the Government in the exercise of the prerogative can alter domestic law”. 

In other words, the law of the land is only as durable as the executive decides it should be.

The Government says this is not absolute: Parliament can always protect against the law being changed by “expressly or (possibly) by necessary implication” saying this cannot be done in an Act – see paragraph 64. But this  is hardly comforting. Very few Acts of Parliament expressly protect the rights they create from interference by the executive,  probably because few parliamentarians would have thought ‘express protection’ was necessary, given our constitutional arrangements. Protection that is ‘possibly by necessary implication’ is only as good as the legal arguments that can be presented in favour of it.

Worse still, many of the rights UK citizens enjoy are not contained in statutes at all,  but in the common law. These include the right to procedurally fair decision-making, access to lawyers, protection for confidential legal advice, access to the courts generally and in specific contexts such as individual liberty, protection from torture, privacy, freedom of religion, freedom of speech and assembly to protest and property rights. 

If the Government is right each and every one of these rights only survives as long as it choses not to reach an international agreement to do away with them.

Laid bare, the Government’s case is not that it should enjoy prerogative power to implement the result of the EU Referendum. It is that it should, and does, enjoy prerogative power to change any law unless  prohibited by an Act. That is a remarkable thing for a Government that includes MPs who once argued for cutting back, and strictly regulating, what was left of the Royal Prerogative so that citizens could have more confidence in Parliament’s role.

But maybe this should not be all that surprising. Those with power always want the same thing - more power. That is why Parliamentary democracy,  which balances  the exercise of power with checks and accountability, however imperfectly,  is something well worth fighting for in the Supreme Court next week.

We are delighted to confirm that, despite the tight court timetable and the increased number of represented parties now active in the case, the People’s Challenge lead QC, Helen Mountfield, is to be given 45 minutes of court time during the hearing to develop the rights-based arguments in our Written Case published yesterday. Helen’s speaking slot will be at 12 noon onwards on Thursday 8 December following on from the Scottish and Welsh Governments whose own Written Cases can now be found on line, here and here. 

Also available today are the cases referred from the Northern Irish courts of Stephen Agnew and others and Raymond McCord, plus that of Northern Ireland’s Attorney General (who opposes them, though without any instructions from the Northern Irish Executive who he normally represents). 

The Independent Workers Union of Great Britain has made submissions too, as have Lawyers for Britain Limited, but these will be dealt with in writing only. It is understood over 200 other individuals and bodies have applied to intervene, but none have been permitted to speak at the hearing. There will be a live video feed from the Supreme Court throughout the proceedings and a transcript published twice daily. We will say more about the hearing in a forthcoming update. 

Meanwhile, a short Bill intended to create an Article 50-compatible “duty to notify the European Council by 31 March 2017 of the United Kingdom’s intention to withdraw from the European Union” has been published, but as this is a Private Member’s Bill, it is unlikely to make much progress in the Parliamentary process (note, an earlier version of this update suggested the Bill was Government supported, but that was based on an incorrect news report).

This morning, the People’s Challenge solicitors filed the 20 comb-bound copies of our Written Case required by the Supreme Court for next week’s hearing.The Case is here in electronic form, published first on Crowd Justice  and distributed to our supporters.

The document runs to 39 pages  and is supported by  dozens of cited cases and  other legal materials  which form part of 35 volumes of material  submitted to the Court’s Justices, a total of more than 14000 pages.  The case is the most document-heavy the Supreme Court has ever dealt with. 

Despite that,  the work on the Written Case and the end product has needed to be disciplined and focused.  We were under strict instructions from the Court’s President, Lord Neuberger,  to avoid duplicating what the lawyers for other parties, especially Gina Miller were saying. Her team’s excellent Written Case is here. There have also been powerfully argued submissions filed by many others, including  the Welsh and Scottish governments and the lawyers acting in the Northern Irish cases, Agnew, McCord and others. We will include links to these in a later update, subject to being permitted to publish them. 

Notwithstanding this,the People’s Challenge case covers four of the most important issues that arise in the appeal. 

First, it confronts head-on the Government’s argument that  the Royal Prerogative can be used to take away rights (whether they are created by Acts of Parliament or common law) unless an Act of Parliament  expressly prohibits that happening.  This is the wrong legal starting point.The Government has to show that the Prerogative  is available for use in the context of  withdrawing from the EU – and it cannot. 

This is backed up by the second  part of the Written Case  which reviews four centuries of case law on the use of the Prerogative in this context.  That shows that there is no trace of the Courts  allowing the law of the land to be altered by the Prerogative since the Bill of Rights prohibited it, but also that the judiciary have repeatedly put a stop to this being attempted by government bodies.  

One graphic example comes from the 1931 case,  King v The London County Council.There a local authority had granted a licence on ‘nod and a wink’terms that demonstrated its officers would not enforce a statute, the Sunday Observance Act, 1780. Lord Justice Scrutton observed: 

“... One is rather tempted to inquire whether the Theatres Committee of the London County Council have ever heard of the Bill of Rights. James II lost his throne, and one of the causes of it was that he took upon himself to dispense with the operation of Acts of Parliament, without the consent of Parliament.”

The third part of the Case is backed up by a meticulously researched Annex that catalogues fundamental and non-replicable EU citizenship rights. It explains precisely why the Prerogative can never be used to extinguish or abrogate those rights because they are granted to UK Citizens by our Parliament. 

Last, the Written Case tackles the argument that the European Communities Act 1972 itself somehow cut down Parliament’s future role in protecting UK citizens. That’s clearly wrong. Though the Government didn’t argue that the Parliament that passed the 1972 Act bound that of today (which would breach a long-established constitutional convention), the effect of its argument succeeding would be the same.

We should hear from the Court very soon about how much time our lead barrister, Helen Mountfield QC  will have to develop these arguments  during the hearing.  

The Government faced an interesting choice in the aftermath of the Divisional Court’s unanimous and powerful ruling that it had no Royal Prerogative power to invoke Article 50. 

Seeking a resolution or some other vote of both Houses would have been a non-starter (because only another statute could overwrite the 1972 European Communities Act), but one option was to humbly accept that it had misunderstood its powers and seek Parliament’s authority with a short Bill that could have been some way through the Parliamentary process by now. 

It would, of course,have been for MPs to debate the contents of that Bill - and some of the trickier issues it would need to tackle, such as the position of the devolved governments (see below).

The alternative was to‘double down’ and take up the suggestion made by Lord Leveson at last July’s directions hearing of an appeal fast-tracked straight to the UK’s Supreme Court. This is, of course, what the Government did. It may now be wondering about the wisdom of that choice, even though it gave short shrift to a plea by senior Tory heavyweights to withdraw its appeal as the hearing approached. 

One reason for that is that the devolution issues first raised by the People’s Challenge group were considered but not determined by the Divisional Court but cannot now be avoided. 

That is partly because of the interventions of the Welsh and Scottish Governments, but even more importantly in terms of the scope of the appeal, the decisions of the Northern Irish courts to refer five questions of law to be decided at the same time as the Government’s Miller appeal:(1) does the Northern Ireland Act 1998 read together with the Belfast Agreement (also known as the Good Friday Agreement) and the British-Irish Agreement mean an Act of Parliament is required before Article 50 can be invoked?; (2) if so, is the consent of the Northern Ireland Assembly required first?; (3) if not, does the 1998 Act read together with the Belfast Agreement and the British-Irish Agreement operate as any form of restriction on the exercise of the prerogative?; (4) does section 75 of the 1998 Act prevent the prerogative power being exercised to invoke Article 50(2) before equality consequences are assessed; and (5) does the exercise of the prerogative power without the consent of the people of Northern Ireland impede section 1 of the 1998 Act – the constitutional cornerstone of the current devolution arrangements and the mechanism for any future referendum on a united Ireland? 

These are serious and important question and similar issues arise in Scotland and Wales.They are important because EU law forms part of the mortar of the UK’s devolution arrangements - allowing rights to be enforced against the devolved governments and imposing EU obligations on them,none of which could be replicated in a Great Repeal Bill. To take one example, the British-Irish Agreement creates institutions responsible for implementing EU-funded cross-border initiatives which become meaningless if Northern Ireland is part of a state no longer bound by EU law. This doesn’t mean that Northern Ireland’s special circumstances and constitutional arrangements ‘block Brexit’. But it does mean that those arrangements have to be dismantled, very carefully, by Parliament. 

The Government has yet to reveal its strategy to counter these arguments but, as noted in an earlier update, it has published its written arguments (the ‘Written Case’ or ‘Printed Case’ in Supreme Court-speak) in support of its appeal. There is no new argument that the 2015 Referendum Act empowers ministers in law, nor any attempt to persuade the court that the decision on Art 50 is so“polycentric” that the courts should not decide the case (the‘hands off’ argument that got nowhere in the Divisional Court). 

Instead, the ‘new and improved’ argument is that “…acts of the Government in the exercise of the prerogative can alter domestic law”, that this is possible unless Parliament has created and clearly marked out statutory ‘no go’ areas for prerogative-wielding ministers. The European Communities Act created the opposite, the Government argues:it functions as a ‘conduit’ through which the products of international negotiations at an EU level can pass into UK law and be enjoyed by UK nationals. But the conduit works both ways, it argues:if the Government decides that an international agreement should be ended and acts accordingly – here by invoking Article 50 to leave the EU – rights may be taken away through the same ‘conduit’.So EU rights are not solid, reliable or permanent in a legal sense –they are ‘ambulatory’, always in flux and dependent on what the Government of the day agrees with other states “from time to time”.

This is a staggering proposition and has implications that go far beyond this case. 

Suppose the government is right. EU citizenship rights enjoyed for decades, that most UK nationals were born with, can be stripped away without any Parliamentary involvement at all. The logic of the Government’s case is that this could have been done if there had been no EU Referendum, or even if majority of votes cast had been in favour of remaining. 

But this argument does not, and cannot, stop at the stripping away of EU rights. Any right that was not protected by Parliamentary ‘stop’ signs in an Act of Parliament could be stripped away just as easily from UK citizens,from common law rights to privacy or property through to rights to access the courts and confidential legal advice. The implications are more than unsettling; they are horrifying. 

Fortunately, there are many reasons why this is not the law which will be set out in the People’s Challenge case later today, but here are two of the most important. 

First, UK citizens do not have to show that Parliament has created a reserved area where their and others’ EU rights can be enjoyed. The right starting point is to inquire whether the Government can show any precedent for use of the prerogative to dispense with citizens’ rights. As Lord Bingham said in Bancoult(No 2) “[w]hen the existence or effect of the royal prerogative is in question the courts must conduct an historical enquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances. ‘If it is law, it will be found in our books.  If it is not to be found there,it is not law’” The ‘books’ would have to be very old ones to support the Government’s true case because the Bill of Rights was drafted to protect against precisely this kind of prerogative-based power grab – as were the Scottish equivalents,the Acts of Union.

Secondly, the European Communities Act cannot plausibly be interpreted as an executive-empowering instrument rather than a rights-granting one.Parliament did not, in some express or implied way surrender to the Crown its own power to control the scope of the EU law, and indeed the EU Treaties, from time to time. The point of the Act was to take us into the European Communities (and later the Union), not to take us in or out as the executive pleases in a game of international hokey-kokey. And as for EU law being ‘ambulatory’, the People’s Challenge case will show that it is anything but: EU rights are fundamental and irreplaceable. 

Meanwhile, it has been reported that the Government faces a further challenge,this time based on the EEA agreement which, it is said, will continued to apply to the UK even if Article 50 is invoked. That is very likely right in law - the UK is a party to the agreement in its own right as well as through the EU. But by itself it is unlikely to provide much of a safety net because, like the EU, the UK can give notice and leave. The Miller appeal will likely decide how that can be done. Whether it should leave the EEA will, if the appeal fails, be for Parliamentarians, not the Courts to decide. 

As mentioned in Thursday’s update, the Government has agreed to make its Case available to the public. It can now be read here.

The Government’s Case maintains that an Article 50 notification cannot be withdrawn, adding that the Court can deal with the appeal without having to decide that issue definitively. It does not claim the Referendum was binding or gave it any new power to invoke Article 50, a point conceded during the Divisional Court hearing. There is also now no suggestion that the Courts lack jurisdiction to decide the case.

But there are many subtle shifts of emphasis and new points taken. Most significantly, an argument only raised briefly in the Divisional Court – that EU Citizenship rights are similar to those agreed at an international level in ‘double taxation’ treaties - is now front and centre. The Government argues the European Communities Act 1972 is an ‘ambulatory’ or ‘conduit’ Act of this kind. It says that, when the 1972 Act was passed, Parliament must have intended ministers could use the Royal Prerogative to negotiate and reach agreements with other European states that would grant rights to UK nationals - or strip them away altogether - without further Parliamentary authority or control and that section 2(1) of the Act would be the ‘conduit’ through which they became part of UK law, or were removed from it.

Our team are already analysing this and other points so they can be forcefully countered in our own case. A further update from them next week will unpack the Government’s Case in more detail.

Meanwhile, a group of Conservative MPs has argued that the Government should withdraw its appeal and submit to Parliamentary control and scrutiny. It seems most unlikely that this will happen –the written case shows the government is determined to make its last stand on its Royal Prerogative arguments.

John Halford, People’s Challenge solicitor

The UK’s Supreme Court was opened in 2009 replacing the Judicial Committee of the House of Lords  as part of a package of constitutional reforms.  It is housed in a grand building on Parliament Square facing the Houses of Parliament and a short walk from the Westminster-based ministries that include David Davis’ Department for Exiting the European Union. This geography is a permanent reminder that Parliamentarians make the law, the Court independently interprets and applies it and government must answer to both.

In just over two weeks, on 5 December, Mr Davis’ lawyers will argue that the invocation of Article 50 is a special case, that his powers to take this step do not come from Parliament, or any Act, but rather the Crown in the form of the Royal Prerogative. There will not be a new argument from them that the EU Referendum was binding and so a source of legal power. Nor will the government argue, its announcements indicate, that an Article 50 notification can be withdrawn if there is Parliamentary intervention at some later date.  So far all the signs are that the government will maintain very similar arguments to those it presented to the Divisional Court.

It might be thought, then, that the Supreme Court hearing will be a premature remake of the drama that unfolded in Court 4 just a few weeks ago. But that would be wrong.  There will be many differences, all calling for careful and hard work by the People’s Challenge legal team, the Claimants’ lawyers and others arguing the Divisional Court was right in holding Mr Davis has to seek power to invoke Article 50 from his fellow MPs in the House, rather than the Palace.

First, both the Scottish and Welsh governments have been given permission to ‘intervene’ to develop the devolution arguments originally raised by the People’s Challenge team from their own perspectives. Both will argue that the devolution arrangements are a further constitutional bulwark against invocation of Article 50 that only and Act of Parliament can dismantle. And, very appropriately, five key devolution questions that are particular to Northern Ireland have been referred to the Court by the Northern Irish Court of Appeal so that they can be considered at the same time as the appeal in Miller and others.  The arguments on Northern Ireland will be presented by the Agnew and McCord legal teams and defended by the government. Northern Ireland’s Attorney General may also make an appearance.

Secondly, many other interventions are being attempted. Two have already been granted permission – those by Fair Deal for Expats (who were involved in the Divisional Court) and from Independent Workers Union of Great Britain. Decisions on others, including one from the pro-leave Lawyers for Britain group, are pending decisions on permission.

All of this will make for a busy hearing. The Court has yet to decide how long each party’s barristers will be allowed to speak – or whether interveners’ barristers as will have the opportunity to speak at all.

And this in turn makes the next step that needs to be taken in the case particularly important. That is for each party and permitted intervener to meticulously prepare their ‘written cases’ - the arguments developing their own positions in the light of what the Divisional Court held and responding to what others have to say.

Work on the People’s Challenge written case is already well underway and a first draft has been circulated amongst the team, enlarged today to include David Gregory who is undertaking further research and analysis on EU rights issues.

The government’s own Written Case has just been served and we will circulate it as soon as it is published. Ms Miller and Mr Dos Santos have until next Friday to file their Written Cases. We have until Tuesday 29 November to file our own.

Supporting these documents will be dozens of comb-bound volumes of statutes, cases, academic articles and other legal material which will also be produced in electronic form for the more technologically savvy. The Supreme Court justices judicial assistants will be looking at much of this material already.

We already know that the Supreme Court takes this case as seriously as it should.  All 11 currently serving justices will hear it - an unprecedented step for the Court. One, Lady Hale, has spoken about the difficult and delicate issues it raises, prompting controversy and even suggestions that she should recuse herself. These are misplaced. Her comments simply identify some of the obvious challenges the case presents for the Court - and will present for Parliament if the appeal is dismissed. They are a very long way away from anything that would cause a fair-minded observer to believe she was biased.

Along with the parties, their lawyers, the Court’s Justices,  press and the  members of the public who arrive early enough to  be admitted to the hearing, the path the Supreme Court is  apparently also going to be walked by Nigel Farage and 100,000 supporters to “remind the Government, politicians and the establishment, including the court, that they cannot ignore the democratic vote of the people in the referendum.”

But this is a drama that has a class not of thousands, but millions, 65 million UK citizens to be precise – and many other EU nationals living here in the UK too. All eyes will be on the Court (which will broadcast proceedings live). Many will be hopeful that it will make sure the protection of their rights remains the responsibility of those sitting in Parliament  just opposite the court, and is not handed over to Mr Davis and his civil servants down the road.

We are delighted to report to supporters that yesterday morning we met our fundraising ‘stretch target’ and are confident that we have sufficient funds to cover the costs of our legal team in the Supreme Court, other expenses and to make a reasonable provision for a share of the Government’s legal costs being awarded against us personally, in the unlikely event that the appeal succeeds.

We are therefore closing the fundraising campaign and will only reopen it if something unforeseen happens which means we need more funds to champion UK Citizens’ rights in the case.

We will send out another update soon explaining the steps that need to be taken between now and the four-day hearing arranged in the Supreme Court from 5 December 2016 onwards, who is now involved and what our team is working on.

 For now though, the most important thing is for us to offer our heartfelt thanks to everyone who has supported and sustained us so far in fighting for Parliamentary control and accountability.

Chris, Fergal, Grahame, Paul, Rob & Tahmid.

We had planned to post a detailed update yesterday on our new Crowd Justice campaign page, but events have been very fast-moving and we’ve needed to take stock of them. This is just a snapshot with more detail and analysis to follow.

First, yesterday saw a Government statement and debate in the Commons about the Divisional Court’s decision. More on this to follow, but the key points to note are that the Government continues to accept, rightly, that the extent of its powers needs to be determined by the courts and that the courts’ decisions must be respected, however ‘disappointing’ they may be. This is important because a number of bloggers have continued to argue that the courts had no business in hearing the case at all. 

The Government also appears to accept that, if the Royal Prerogative cannot lawfully be used to take the UK out of the EU, only an Act of Parliament will do.

Secondly, the Supreme Court has, unsurprisingly but very quickly, granted the Government permission to make its ‘leapfrog’ appeal which will be heard from 5 December 2016, most likely over the following four days. The Scottish and Welsh Governments both plan to intervene and Nicola Sturgeon has made it clear that she fully supports the Divisional Court decision. 

There are also press reports that Leave.EU may intervene, though to do so it will need to persuade the Supreme Court it ought to be granted permission to make submissions in the public interest. 

As far as we know, all the parties represented in the Divisional Court will continue to be involved. It is not yet clear whether the Northern Ireland High Court will allow a leapfrog appeal from Maguire J’s decision to be heard along with the Miller and others litigation.

On funding, we are now very close to our stretch target thanks to the sustained support over the last few days. Thank you again. We have asked the Government to agree a ‘reciprocal costs cap’ as was agreed in the Court below, so we should soon have certainty on how much we need to budget for to cover a share of Government costs in the highly unlikely event its appeal succeed.  

Fantastically, we have made not only our initial target, but our first stretch target for the relaunched campaign, in just over 24 hours.

Our legal team now has really solid backing for the work they will need to do to defend yesterday’s victory against the Government’s appeal.

You have really staggered us with your support and generosity, all of which are a welcome change from the abuse and nonsense from some quarters.

We will be leaving the our new Crowd Justice campaign running with a revised stretch target of £150,000 which will almost certainly be sufficient for all work connected with the appeal and protection against government costs.

We want to ensure that we are in the very best position to protect people’s rights against the Government’s attempted power grab.

We will update you on Monday with a final budget, but every pledge will be used wisely and effectively to defend both individuals’ rights and Parliamentary Sovereignty.

Thank you once again.

This update is from John Halford, Partner at Bindmans LLP

On 20 September 1610, Sir Edward Coke, the  then Chief Justice, was asked to give a ruling on whether the King could use a Royal Proclamation to suspend  an Act of Parliament that had authorised merchants’ trading activities in London. He identified the case as one "of great importance” because it concerned the accountability of “the king to the Commons".  Coke then ruled that the Royal Prerogative could not be used in this way to override rights Parliament had granted. 

This morning, 416 years later, Court 4 was packed with lawyers, journalists and members public many of were wondering whether Coke’s successor, the current Lord Chief Justice, Lord Thomas, was about to defend Parliamentary Sovereignty in a similarly courageous way. And minutes later he, the Master of the Rolls and Lord Justice Sales, did just that in a unanimous judgment. The ‘summary of the summary’ was simply this: “the most fundamental rule of the UK constitution is that parliament is sovereign”.

The Court went on to note that all parties in the case agreed the 2016 EU Referendum was advisory only and so had no effect on government powers or those of Parliament. The Referendum was important politically, of course, but had no effect in law. Instead, as revealed in the full judgment (R (Miller and Others) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)), the Court’s focus was very much on the impact invoking Article 50 would have on ordinary peoples’ rights.

On that, the claimants, interested parties including the People’s Challenge group, and the interveners had also agreed with the Government that withdrawal from the EU by Article 50 would affect UK citizens’ rights that could not be replicated following UK departure from the EU (such as rights to vote, complain to the Commission or to seek a ruling from an EU institution) along with the rights they can exercise in other EU countries (such as free movement and access to health care). The Government had also accepted Article 50, once invoked, could not be reversed. 

It followed, said the Court, that triggering Article 50 would inevitably strip away rights with no realistic prospect of Parliament restoring them. Critically, these were rights that had been granted through Acts of Parliament, starting with the European Communities Act 1972. It would be “surprising” if they could be removed by prerogative power, especially given the strong constitutional presumption that Parliament does not, unless it says so expressly, intend the government to have power to change the law of the land using the prerogative. That was a particularly strong presumption here given the importance and scale of the rights at issue. Drawing on a metaphor used by the People’s Challenge QC, Helen Mountfield, in her submissions, the Court observed, that having ‘switched on’ EU law in the UK using a series of statutes, it was implausible that Parliament had anticipated the government could use the Royal Prerogative to “switch it off again”. The proper interpretation of the 1972 Act, informed by constitutional principle, was that the Royal Prerogative had been excluded by incorporation of EU law into UK law.   

The Court said it was not necessary to deal with the arguments raised about the Act of Union 1707 but, taking account of points made by the People’s Challenge in their submissions about the special position of devolved nations including Northern Ireland, cast doubt on last week’s judgment of Maguire J in the Belfast High Court. Maguire J will hear an application next week seeking permission to appeal from his own judgment direct to the Supreme Court. 

And that is where the Miller case is also headed: Lord Thomas issued a certificate allowing a ‘leapfrog’ appeal from today’s ruling which will be heard by the Supreme Court early in December. 

The People’s Challenge remains an interested party and so is entitled to be involved. The three good reasons for it to be involved in this litigation, backed by thousands of crowd funders, remain. So preparations are already underway to defend today’s judgement – and in turn Parliamentary sovereignty – at that hearing. But the importance of today’s ruling cannot be overstated. Lord Coke would be proud, not only of the judges that have followed in his footsteps, but that ordinary UK citizens were able to contribute to the case that made that possible.