The Government's secret Brexit studies

by Good Law Project Limited

The Government's secret Brexit studies

by Good Law Project Limited
Good Law Project Limited
The Good Law Project was founded by Jo Maugham QC and uses the law to deliver a better society.
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The Good Law Project was founded by Jo Maugham QC and uses the law to deliver a better society.
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Latest: March 13, 2018

We got what we came for

Back in October of last year we wrote to the Chancellor and the Brexit Secretary asking for two types of document: the sectoral studies mentioned by David Davis to a Commons Select Committee in Dec...

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Brexit is the most significant challenge facing the UK. Its effects will have consequences for every area of our lives. They will last for generations. Our Government recognises this, and the Department for Exiting the European Union has commissioned studies investigating the potential economic impact in detail.

On 14 December 2016, DExEU minister David Davis told the House of Commons’ Committee on Exiting the EU that “our studies cover 85% of the economy – everything except sectors that are not affected by international trade”. DExEU has promised to publish a list of these studies, shortly but not now. HM Treasury has also produced a report comparing the predicted economic harm of Brexit with the predicted economic benefits of alternative free trade agreements. That report has also not been made public.

We believe we have a right to know what the Government thinks are the economic consequences of leaving the EU. Political elites should not restrict information and deliberately leave us in the dark about the future of our own country. For Brexit to be justified as an expression of democratic will that democratic will must be informed.

We cannot have a real public debate about the terms of our withdrawal from the EU without knowing the full facts. And it’s absolutely essential that MPs have access to these studies to enable them to properly scrutinise government actions and proposals.

We have today written to David Davis MP and the Treasury asking them to disclose the documents. If they do not we will issue judicial review proceedings to seek to compel them. It’s our contention that our own common law obliges them to produce those documents. And so does Article 10(1) of the European Convention on Human Rights.

The Government’s stance is that this information will not be released voluntarily. And we cannot wait. We must act quickly to ensure that, if we are to leave the EU, we do so on terms that serve the British people in the best possible way.

The Mechanics

The Claimants will be Molly Scott Cato MEP and the Good Law Project.

We invite you to read the letter to DExEU and HM Treasury here. That letter is the first formal step in the legal process. If this case is funded, we will follow up by issuing judicial review proceedings against DExEU and HM Treasury. 

The form of the challenge has been recognised by the Supreme Court and the European Court of Human Rights. However, the law in the field is underdeveloped and so the outcome cannot be predicted with certainty. We do, however, have the benefit of advice and representation from probably the leading information law QC and leading information law junior at the Bar: Tim Pitt-Payne QC and Robin Hopkins. They are instructed by Constantine Partasides QC at Three Crowns.

A judicial review action takes place in two stages. First, you need permission from the Court. We are seeking to raise £26,000 to take the case to the permission stage. If we get permission we will then need to prepare for the full hearing. If we hit the first £26,000 target we will seek a further £30,000 for the next stage - the so-called 'stretch target'. 

We anticipate that these sums will be sufficient to take the case to a conclusion in the High Court. There are, however, circumstances in which we may need to ask for more: in particular if the case changes in nature into a much more fact heavy case than we presently anticipate or if we are unable to secure the protection that we presently anticipate against adverse costs.

Tim Pitt-Payne QC and Robin Hopkins are working at heavily discounted rates. And we are grateful to Three Crowns who are providing their services for free.

We anticipate that we will obtain permission. However, if we are wrong, any surplus money raised will be held for other litigation: it will not go into the general funds of the Good Law Project. There are no circumstances in which any monies raised will go to Jo Maugham QC personally and neither he nor Good Law Project will make any charge against these monies in connection with this litigation.

Update 4

Good Law Project Limited

March 13, 2018

We got what we came for

Back in October of last year we wrote to the Chancellor and the Brexit Secretary asking for two types of document: the sectoral studies mentioned by David Davis to a Commons Select Committee in December 2016 and a Treasury document weighing the hoped-for benefits of crafting trade deals with the rest of the world against the certain costs of what the Prime Minister now admits will be diminished access to our biggest market, the EU.

What the Government knew to be the economic consequences of leaving the EU we believed we, too, had the right to know. It is not for the political elites to leave the people in the dark about the future of their country.

You funded us and we threatened and then initiated judicial review proceedings. Last week, on Tuesday, the High Court refused us permission but we said we would appeal.

However, on Thursday, the Exiting the EU Select Committee published a document from January 2018: the “EU Exit Analysis Cross Whitehall Briefing.” It contained, in particular, a summary of the sectoral studies we had sought (see slide 10). And it incorporated the Treasury’s work from earlier last year into a later and more sophisticated summary of the trade effects of Brexit (see slides 14 and 16).

So the information now in the public domain – albeit only in summary form – appears to be more up to date than that which we were seeking. In the circumstances we have concluded that little purpose would be served by us continuing with our appeal.

This battle was won by political pressure – and particular credit must go to the Opposition Parties. But the litigation helped keep the Government under pressure and maintained a focus on your right to know.

We played our part – with your help.

We are hugely grateful to Timothy Pitt-Payne QC and Robin Hopkins of 11 King’s Bench Walk. And to Three Crowns LLP who graciously agreed to support this important piece of public interest litigation free of charge. We are also enormously grateful to our expert witnesses Alasdair Smith, Swati Dhingra and Maurice Frankel. They, too, acted without charge.

We have asked for an account of our costs and we will publish when we receive it. In accordance with the undertaking we gave here, any surplus funds will be held for the costs of other litigation.

Good Law Project and Molly Scott Cato MEP

Update 3

Good Law Project Limited

March 6, 2018

The way forward

Back in December we started judicial review proceedings to try and force the Government to publish its secret Brexit studies. We could have taken the obvious route of making an application under the Freedom of Information Act – one pursued by dozens of other applicants without success. Instead we took the novel course of asserting that the common law gave us that right.

We believed then that the Freedom of Information Act procedures were too slow. It would not deliver the secret Brexit studies in time. Our best chance was to pursue this novel route. We are not historians – we do not seek their publication so we can look back at what happened. We are political actors – we want to guide the decisions that lie ahead. When it comes to the national interest we believe blind faith is no substitute for hard evidence.

We took this course with the benefit of formal written advice and representation from the leading information law QC and the leading information law junior in the country. And we secured the benefit of very high quality assistance from Three Crowns LLP.

Today at the High Court we failed to persuade a High Court judge that our novel route had sufficient prospects of success. He accepted the evidence of the Information Commissioner, adopted by the Government, that, in fact, her administration of the Freedom of Information Act could deliver the secret Brexit studies by October. You can read a note of his decision here.

But the reasons why we brought this case have not gone away.

Whatever the route, our destination remains the same. The case is about the right of those affected by Brexit to understand what Brexit means for them. Taking back control for the people, not for a secretive Government to hide vital facts from MPs and the public.

So what we will do is this.

We will pursue the Freedom of Information Act requests made in parallel to these proceedings and rejected by the Government. We will appeal these to the Information Commissioner within days. Let us see whether the Information Commissioner is as good as her word.

We will publish our appeals to the Information Commissioner. And we will publish her representations to the High Court. And we will obtain and we will publish a transcript of today’s hearing. Let the country know each has said about the speed of the statutory regime.

And so that we can hold her, and the Government’s, feet to the fire, we will appeal today’s High Court decision. If the representations made to the court are accurate we should have decisions on the secret Brexit studies in plenty of time. If, on the other hand, they are founded more in rhetoric than reality – if it turns out that we were right all along that only the common law can deliver the studies in time – then the Court of Appeal will have that truth when it comes to decide our appeal.

We will work to ensure that, one way or another, the Government is forced to admit to the people the truth about what Brexit means.

Update 2

Good Law Project Limited

Jan. 26, 2018

An update on our progress

Back in December we filed our judicial review claim to compel disclosure of DExEU and HMT’s secret Brexit studies. We acted with the benefit of advice and representation from the leading information law QC and the leading information law junior in the country. And we had the benefit of very high quality assistance from Three Crowns LLP.

You can read the documents here.

The Government’s response was filed just before Christmas and you can read it here. They made only one point. They said that the fact that there was a statutory mechanism (under the Freedom of Information Act) – a route that we did not consider would lead to the delivery of the DExEU and HMT studies in time – meant that there was no extra-statutory route to the disclosure of those documents.

Since then we have suffered two material setbacks. First, the court ruled that the case should not – as we had requested – benefit from an expedited timetable. Second, today, we heard that a judge considered that there was “no properly arguable claim”.  

As to the first of these points, we are not bringing the case for the benefit of future historians. So the speed with which the studies will be produced were we to succeed is very material to the question whether it is right to pursue the claim. And we were in the process of renewing our application for expedition – an application I would not pretend to be straightforward - when we received the decision on permission.

As to the second point, court rules make specific provision for us to reopen the application for permission. The legal team will discuss the matter early next week and I will update you promptly with, whatever we decide, our reasons.

Do feel free to contact me if you have a strong view in the meantime. I will try, depending on numbers, to reply.

Jo Maugham QC

Update 1

Good Law Project Limited

Nov. 9, 2017

Court action still looms for government to force public disclosure of Brexit impact studies

What follows is the text of a press release sent out by the Good Law Project and Molly Scott Cato MEP earlier in the week.

The threat of court action by an MEP and barrister still hangs over the government, despite a Commons backed opposition day motion last week which called for the release of studies into the impacts of Brexit on 58 sectors of the economy [1].

Lawyers representing Molly Scott Cato MEP and Jolyon Maugham QC have now written to both the Brexit secretary, David Davis, and the chancellor, Phillip Hammond [2], to reiterate the need for a ‘fully informed public and parliamentary debate about the terms of Brexit, and the importance of these documents to that debate.’ They have also warned that a failure to disclose the sectoral studies, as well as a report by the Treasury [3], to the public by Monday 13th November will result in judicial review proceedings to obtain the studies.

Dr Scott Cato and Mr Maugham also accuse the government of ‘procrastination and playing semantics’. In a letter from David Davis to Hilary Benn, the Chair of Exiting the EU Committee [4], Mr Davis says: ‘it will take time to collate and bring together this information in a way that is accessible and informative to the Committee’. Mr Davis also reiterates his belief that some of the information ‘should not find its way into the public domain’, suggesting the studies released to the Committee could be heavily redacted. 

Commenting, Molly Scott Cato MEP said:

“Passing papers along a few corridors so they land on a desk of a committee is simply not good enough. There is also the fear that the documents will be heavily redacted when they do, so members of parliament and the public will still be kept in the dark. Having spent months arguing about releasing the studies, Brexit Minister Steve Baker has now reduced the debate to farce by suggesting that the studies may not exist at all [5]!

“The assurance from the government last week that the studies would be released has now been followed up with procrastination and playing semantics. David Davis has made clear he has no intention of releasing these studies anytime soon, and is fudging over the number and type of analyses carried out. This is totally unacceptable, and we continue with our threat of court action to ensure these studies, in their entirety, are made publicly available.”

Jolyon Maugham QC, said:

“There is very good evidence that the Treasury has produced an analysis comparing the gains from future free trade agreements with the economic costs of leaving the customs union.

“This is a live issue. The Government says we will leave the customs union, but Labour’s position is that we may well not [6]. This question is vital to the future prosperity of the nation and debate must be informed by the best available evidence.

“I find it hard to see how our own modelling of the effects of that decision – modelling that could perfectly well be undertaken by our negotiating counterparties – could prejudice the result of the negotiations. I believe the Government’s real reason is that it wishes to avoid the political embarrassment of properly informed debate. That is not a good or acceptable reason for keeping this analysis secret.”      

Molly Scott Cato and The Good Law Project are working together to demand the government make the studies into 58 sectors of the economy and the Treasury Report publicly available. A crowdfunding campaign to cover the costs of judicial review proceedings achieved its target within 48 hours, raising almost £60,000 from over 2000 donors.

ENDS

Notes

[1] https://www.theguardian.com/politics/2017/nov/01/government-may-bow-to-pressure-to-release-brexit-impact-studies

[2] http://mollymep.org.uk/wp-content/uploads/DExEU_Treasury-06.11.17.pdf

[3] Referred to here: http://www.cer.eu/insights/britain-prepares-softer-brexit

[4] http://mollymep.org.uk/wp-content/uploads/DavistoBenn-Nov17.pdf

[5] http://www.independent.co.uk/news/uk/politics/brexit-latest-news-government-secret-studies-publish-economic-impact-eu-leave-steve-baker-brexit-a8041976.html

[6] https://uk.reuters.com/article/uk-britain-eu-labour/labour-shifts-on-brexit-proposes-staying-in-customs-union-idUKKCN1BZ136

All letters from solicitors acting for Molly Scott Cato MEP and the Good Law Project to DExEU and the Treasury and responses to date can be seen here: http://mollymep.org.uk/2017/11/07/letters-release-brexit-impact-studies/

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