Strengthening our negotiating hand

by Good Law Project Limited

Strengthening our negotiating hand

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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Latest: July 5, 2018

We are proceeding with our appeal

We have an exciting update about our Article 50 case.

Last month, the Court of Session refused to refer to the Court of Justice in Luxembourg the question whether the UK can unilaterally revoke its ...

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The future of Brexit is increasingly uncertain. 

The promises the Government made – that there would be “no downside to Brexit, only a considerable upside” and that a deal would be the “easiest in history” – look like falling short. And new facts about Brexit are emerging every day: only today it became clear that to leave will involve us settling a staggering €50,000,000,000 liability.

The message now is "damage control."

This makes it vital that we leave all options on the table for Parliament, including staying in the EU. It must be Parliament that decides on our future – not Ministers in a minority Government. It must be Parliament that chooses which path we take when, at last, we learn what's on the table.

And there is a choice. 

We know it is possible to stay in the EU, if the other member states give us permission.

But the destiny of the United Kingdom should rest in the hands of our Parliament. It must be our elected MPs who decide what road to take. Politicians from Scotland, England, Wales and Northern Ireland – not elsewhere – must control our future.

Many experts believe we can choose to stay in the EU without permission. That, if we want, we can just withdraw our notice. But there is only one way to be sure: a court has to decide what Article 50 means.

And because Article 50 must mean the same thing to everyone, a national court can’t give the answer. Only the specialist European Court in Luxembourg can interpret Article 50 definitively. So we will ask the Court of Session in Scotland to ‘refer’ it to Luxembourg.

This is the only way to give our Parliament the best negotiating hand. To maximise its power if the right choice is to stick with what we have.

The Mechanics

Earlier this week we wrote to David Davis MP and the Advocate General for Scotland asking them to set out the Government's position on whether the Article 50 notice can be unilaterally withdrawn. We gave them fourteen days to confirm that the  Government accepts that it is legally possible as a matter of EU law for the UK unilaterally to withdraw its Article 50 notice.

The Petitioners will be Andy Wightman MSP, Ross Greer MSP and they will be joined by Alyn Smith MEP and David Martin MEP. There may also be further Petitioners.

They will be represented by a stellar legal team. It will be led by Aidan O'Neill QC. Aidan is a "double Silk" - a QC in both England/Wales and Scotland. The leading legal directory, Chambers, said in 2016 that "He knows more about European Union law than anyone else." His junior will be Peter Sellar. And they will be instructed by Elaine Motion, the Chairman of Balfour + Manson.

We are seeking to raise funds for the permission stage and any adverse costs. If we are successful in obtaining permission - and we believe we will be - we are likely to need to raise further sums. Given the obvious public interest in the outcome we will ask the court to make a protective costs order. 

The legal team are working at heavily discounted rates.

Update 6

Good Law Project Limited

July 5, 2018

We are proceeding with our appeal

We have an exciting update about our Article 50 case.

Last month, the Court of Session refused to refer to the Court of Justice in Luxembourg the question whether the UK can unilaterally revoke its Article 50 notification. The Court said that the Government does not intend to withdraw the Article 50 notice, and the question over whether it can is hypothetical.

We think the Court of Session's decision is wrong, so we're very pleased to announce that we filed papers appealing the decision. We have also received great news that the Good Law Project has been granted a protective expenses order, meaning that the appeal can go ahead.

If necessary, we will appeal all the way to the Supreme Court.

The hearing in the Inner House of the Court of Session is scheduled for 15th August 2018.

Update 5

Good Law Project Limited

June 8, 2018

The decision of the Court of Session

I am sorry to say that, earlier this morning, the Court in Edinburgh decided not to ask the European Court if our Parliament could unilaterally withdraw the Article 50 notification.

Why did we want it to ask that question?

There were two reasons.

First, so that our Parliament – not those of other EU member states – controlled the UK’s destiny inside or outside Europe. That is what *unilateral* revocability delivers.

Second, because *unilateral* revocability means that, if we did decide to Remain, we would do so with the benefit of all of the special arrangements we presently enjoy.

What does the Court’s refusal to ask that question mean?

Parliament can still withdraw the Article 50 notification and Remain – so long as the other member states agree. As things stand they all say they will agree. But if they change their mind we will put the question before the European Court.

Why did we lose?

We lost because the Court said that, as things stand, the Government does not intend to withdraw the A50 notice and so the question whether it can is hypothetical (courts typically do not answer hypothetical questions).

Our argument was this. The Court ask ‘what might happen if our sovereign Parliament did choose to revoke?’ an action we know some MPs and Peers are contemplating.

If that happened, there could be a sustained period during which neither the EU nor the UK knew if the UK was inside or outside the EU. Such would engender chaos in the UK and the EU. The tests the law sets down must operate in the real world.

The Court of Session rejected that response. And my view as to whether it was right or wrong to do so is legally irrelevant.

What happens next? 

A constraint is that I have limited resources and have already given a personal indemnity against the Government’s costs. To appeal I will need an order limiting that liability but, if we get one, we are likely to appeal.

Is there a silver lining? 

The Court has made it crystal clear that the choice whether to withdraw the Article 50 notification and Remain is for Parliament not the Government. Parliament has control.

What has happened to the crowdfunded money? 

The sums we have raised will go, first, to pay the Government’s adverse costs and, second, if there is any left over to pay our own legal team.

Has that money been wasted? 

Litigation is an uncertain business and I’m not in the business of sugar coating the pill on occasions when (as is inevitable) I lose.

Inevitably some will use this defeat to attack me personally. My record to date can be seen here.

What is the status of the other Brexit litigation I am involved in? 

On 19 June the Court will hear Good Law Project’s challenge to the Electoral Commission’s handling of Vote Leave’s ‘donation’ to Darren Grimes. We have already forced it to reopen its investigation.

On 19 June (also) the Court of Appeal in Amsterdam will decide whether the Court below was right to refer to the European Court the question whether we get to keep our EU citizenship if Brexit happens.

Finally, I should say thank you to the solicitors and Counsel who worked so hard for very modest payment. And to the other Petitioners for supporting this attempt to strengthen Parliament.

Please sign up to the Good Law Project’s emails or become a member here.

Update 4

Good Law Project Limited

May 11, 2018

Getting to Remain. An update.

Later this month – on the 22nd of May – we will have a hearing before the Court of Session in Edinburgh. It will decide whether to ask the Court of Justice in Luxembourg if we can withdraw our Article 50 notice – if Parliament decides Brexit is not in the national interest.

I am one of the petitioners – along with a handful of Scottish Members of the Parliaments of the UK, Scotland and Europe. Two English MPs are also intervening in support of the case. And a Welsh MP and a member of the Welsh Assembly are also supporting the case. They all want to know for sure that we can choose to remain.

As things stand, the other 27 member states of the EU say they would allow us to withdraw our notice if we wanted to. That they would permit us to. And this gives us real comfort that such a thing is possible. However, the case is about whether we can remain just because we choose to. And it is vitally important for three reasons.

First, Guy Verhofstadt has said that remaining now would mean the UK losing its valuable opt-outs and rebate. Of course, he does not speak for all of Europe. And (as far as I am aware) his language has not been repeated by other leaders. But we mustn’t lose the good deal we presently enjoy. If we can pull our notice unilaterally – just because we want to and without needing their permission – the consequence should be that we keep the same good deal. They would have no leverage to charge a price for us remaining.

Second, without a right unilaterally to withdraw the notice, any one Member State could block us remaining. Already, Brexit is causing an exodus of jobs in the finance and space sectors to the EU. And many more are likely to follow over time if we continue to allow the EU to tighten the screws on our economy. And the Japanese have given a very clear indication that car makers will move to Europe if we can’t get frictionless trade with the EU. And – remember David Cameron when he tried to ‘roll out the red carpet’ for high earners in France? – poor policy in one country creates winners in others.

So, how confident can we be that all 27 member states would allow us back? Can we be sure they would sacrifice their own interests to do so? Best we not rely on that hope.

Finally, third, this case is a chance to put debates about remaining back on the front pages of the newspapers. Although it cannot cause us to remain – that is rightly a matter for elected politicians and not judges – it will ensure we all know, particularly those who have changed their minds about the wisdom of Brexit, that remaining is possible.

But we need money to fund the case. I have provided a personal indemnity to the other Scottish petitioners – without it many or all would not be able to participate – but I do not know how long I can keep it open.

Update 3

Good Law Project Limited

Feb. 9, 2018

We're appealing

We have decided to proceed with the appeal.

Of the seven original Petitioners, five have agreed that we should appeal. Joanna Cherry QC and Christine Jardine are withdrawing. And I am being added as a Petitioner/Appellant.

Because we are asking you to fund a case which a Judge has declared lacks any reasonable prospect of succeeding we are taking the step of publishing a note prepared by Aidan O’Neill QC and Peter Sellar to advise the Petitioners.

That Note sets out from a technical, legal perspective why the Decision of the Judge below was flawed. You can – indeed, before you fund this case you should – read that Note.

Establishing that, alongside the political route to revocability there is a legal route, is vital in the national interest. If Parliament chooses not to withdraw the Article 50 notice then no harm is done by asking now the question whether it has that right. But if Parliament does come to want to withdraw the notice, knowing it has the right to do so serves the national interest

It improves the bargaining position of the UK, it ensures we retain the opt-outs and rebates that we presently enjoy, and it places the decision entirely in the hands of the UK’s Parliament and – if it chooses – its people.

Jo Maugham QC, Director

Update 2

Good Law Project Limited

Feb. 6, 2018

Further crowdfunding to fund an appeal

We heard this morning that Lord Doherty, sitting in the Court of Session, had refused permission to the seven Scottish MEPs, MSPs and MPs attempt to understand what options might be available to the UK Parliament. You can read his decision here.

His decision was not a surprise.

Different Judges have different approaches to disputes involving the Government. That is regrettable from the point of view of legal certainty but it is also inevitable. And Lord Doherty is perceived as conservative (in a non-party political sense). The hearing and judgment bore out that perception.

I remain very firmly of the view both that (1) it is in the national interest that our sovereign UK Parliament knows what options it has and (2) Lord Doherty’s assessment of the question as “academic” is wrong.

It is impossible sensibly to pretend that many in Parliament are not contemplating a revocation of the Article 50 notice. The only amendment to the Repeal Bill that passed in the Commons opened the door to exactly that possibility. Don’t accept my characterisation: it’s exactly how (for example) Sir Oliver Letwin (speaking against the amendment) put it. As did others.

It is also impossible sensibly to pretend that the question can be asked later. In the Shindler case – which concerned the rights of UK citizens long term resident in Europe to vote in the Referendum – the Claimants were denied a reference to the European Court because they had waited too long to ask for one. The fact that the answer would come from the European Court after the Referendum vote was said to have the consequence that the answer was “academic”. If we are to avoid that judgment again, we need to ask the question now.

Finally, it is impossible sensibly to pretend that it is not in the national interest for the question to be asked. If Parliament chooses not to withdraw the notice then no harm is done by asking now the question whether it can. But if Parliament does choose to withdraw the notice then knowing that revocation can be made unilaterally improves our bargaining position vis-à-vis the other 27 member states and provides it with legal certainty. Brexit is profoundly important and no one can wish us not to know what the 'rules' are. 

The advice of our legal team is that we should appeal. We have the right to appeal to the Inner House of the Court of Session. If they refuse permission the advice I have received is that we can – and we presently believe we should – ask the Supreme Court for permission.

We are crowdfunding for a further £50,000 (plus CrowdJustice’s costs). That money will enable both of these further limbs of appeal to be pursued and is raised for the purposes of protecting the Petitioners against adverse costs. No money will be taken from your accounts until a final decision has been whether to appeal. It is right to say that these will be appeals against a refusal of permission rather than against a refusal to refer the question of irrevocability to the European Court. However, it is possible or likely that as one rises through the appellate courts what is formally a permission question will roll up into a substantive question about whether to make the reference.

I am very grateful for your continued support. If you are able to, please do fund.

Jo Maugham QC, Director and Founder (Good Law Project)

Update 1

Good Law Project Limited

Feb. 3, 2018

The hearing on Friday

There is no doubt there is a political route to revocability: if the other 27 agree, we can remain. But to improve the bargaining position of the UK, to ensure we retain the opt-outs and rebates that we presently enjoy, and to place the decision entirely in the hands of the UK’s Parliament and – if it chooses – its people we must seek to establish a legal route to revocability. We must seek to secure a right for Parliament to withdraw the Article 50 notice – if it chooses.

The permission decision of the Court of Session will be handed down on Tuesday at 9.30am. I was warned before the hearing – once the judge was known – that we were likely to have a bumpy ride and so it proved. But we have a right to appeal to the Inner House and, should we need it, the Supreme Court.

I believe we are right and the question should be referred. There are a number of reasons why I say this. But the main argument is this.

You cannot sensibly pretend that Parliament is not considering whether to revoke the Article 50 notice. The only amendment to the Repeal Bill that passed in the Commons opened the door to exactly that possibility. But don’t accept my characterisation: it’s exactly how (for example) Sir Oliver Letwin (speaking against it) put it. So did others.

In those circumstances it is vital that the UK Parliament knows whether it possesses that power. Indeed, it is vital that the EU27 knows whether Parliament possesses that power. And both need to know before the question whether to exercise it arises. If Parliament doesn’t know then – should Parliament come to exercise the power – there will be chaos for the UK and the r27. There will be a period of many months in which we and they may not know whether the UK is inside or outside the EU. So it is not practical and it is not sensible to wait and see. When decisions of this magnitude are being contemplated the rules must be known in advance.

And there is no good argument to the contrary. None at all.

Stripped of legal niceties, all the Government can say is, ‘we do not plan to revoke’. But (see that Oliver Letwin quote again) it is not for Government to decide. It is for Parliament to decide. (And, of course, both Governments and their positions can change.)

That is why I think it is important that we know the answer. And if, as I expect, Lord Doherty in the Court of Session disagrees and refuses to refer the matter to the CJEU it will be my advice to the seven petitioners that we should appeal to the Inner House of the Court of Session and, if necessary, the Supreme Court. (We have a right to appeal to the Inner House; we would need permission for a further appeal to the Supreme Court).

To do this we will need further funds.

As matters stand (in this case as in many others that I and the Good Law Project am and have been involved with) I am personally indemnifying the petitioners against the risk of costs falling upon them. I have no money other than what I have earned in a relatively short career at the Bar. That is a difficult financial burden to sustain in one piece of litigation; it is impossible across many.

So, if we lose on Tuesday, I will launch a further fundraising on Crowdjustice to protect us against adverse costs. You will have the opportunity to decide.

In the meantime, you can see our claim here.

You can see the Government’s answers here.

You can see the affidavit of Joanna Cherry QC here.

And you can see the affidavit of Andy Wightman here.

And you can see the speaking note of Aidan O’Neill here, here and here.

Jo Maugham QC

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