Article 50 Challenge – Report
Published by Liz Webster · 17 June 2018
We found the Decision!
On Tuesday 12 June, Article 50 Challenge was robustly refused permission by the Divisional Court. The claim was termed “hopeless”, “unarguable” and “without merit”. We will circulate the full transcript of the judgment when we receive it from the court.
However, the substance of the hearing and the resulting judgment have produced a dilemma and we have spent the last few days conferring on what our next steps should be, if any. As you will see by reading on there is an issue which makes us uneasy.
All the way along the litigation – and even in the hearing – the Government was unable to identify a decision to leave the EU (see chronology of Government statements about the decision). As a result the itself Court made its own finding of fact as to when and how the decision was formed.
The Court found the decision to leave the EU was made by the Prime Minister, backed by the authority of the 2017 Notification of Withdrawal Act and was embodied in her notification letter. In other words, the decision was identified as occurring as her hand hovered over the letter. In other words the decision to leave the EU is implied in the notification letter (and not in the referendum or in Parliament), despite the fact that the letter is “[giving] effect to” the referendum result.
The Court also considered that we are out of time, the Prime Minister’s letter having been sent at the end of March 2017: we should have brought this case within three months of that date.
In Miller the Supreme Court ruled that Ministers alone cannot alter rights, only Parliament can make the decision to alter rights.
Even if we forget the point above and allow Parliament to be silent on the decision to leave, further issues arise as the “decision” taken by the Prime Minister was not backed up by due diligence: there were no impact assessments, no consultation, and the previous Government’s analysis found that Brexit would be hugely detrimental to the country.
Additional difficulties are also created by the precedent of “constitutional silence” on a decision of enormous constitutional importance.
Brexit in this form would create executive rule – in effect, a dictatorship.
Equally, the lack of Parliamentary scrutiny over the removal of rights opens up an enormous floodgate issue for potential compensation claims for loss, not only against the UK but also the EU.
The team have conferred, carried out assessments, and made a constitutional decision, which we are now notifying …
… WE ARE APPEALING.
We have decided to ask for leave to appeal.
This has to be lodged in the Court by Tuesday 19th June 2018, 4.00 pm.
We have felt like giving up and throwing in the towel.
But, after much soul searching and debate, and with a reluctant sense of duty, we feel we have a responsibility to make serious points with more focus, now the fog has lifted on the nature and location of the decision, which has finally been revealed, and the identity of the decision maker – the Prime Minister – has been unmasked.
We face the possibility of failure and criticism for being hopeless, annoying, and of wasting resources. But we feel it only fair to all our donors to petition the Court once more with:
“Sorry my Lords, we know you don’t want to deal with this issue but there are gargantuan problems here, and their scope is now clear since the decision’s unmasking last week.”
Additionally, the courts may now face fresh challenges on this newly discovered decision which will be free of the time bar, so we feel it is prudent to give the Court the opportunity to take the bull by the horns sooner rather than later.
There are quite enough cans being kicked down the road in Parliament as it is!
At a minimum we will get a judgment saying the Court of Appeal agrees with the High Court judgment: you’re out of time so go away.
However, we hope we may also get some answers even in the event of a refusal judgment to piece together some more parts of the constitutional jigsaw that is Brexit.
That feels important to us. The disclosure last week feels important to us. And it is because it makes political accountability clear, shows who is responsible for what, and disturbs the convenient but inaccurate statement that “the people decided”: they didn’t, we know that now very clearly.
To be totally frank, Article 50 Challenge was never about a dramatic court victory; it was always about finding the decision in the hope of empowering Parliament to do its job. We have therefore made progress without winning.
This ruling also assists the pending Shindler case due to be heard in the EU General Court on 5 July.
Update – The Explosive Nature of Last Week’s Judgment
By Liz Webster – 20 June 2018
The full Divisional Court judgment from last week’s hearing can be found here: https://drive.google.com/…/16ylKxZqL-QoBdVfz547-rEFaL6…/view.
Beyond the headline outcome that we were refused permission to apply for judicial review, more importantly we have learnt from it that the country does not have what it is entitled to expect and what the law demands.
That is why there is a political crisis.
The constitution has been circumvented.
This is serious, and concerning. Protecting the integrity of our constitution has always been at the heart of our action, and this has been brought into sharp focus by last week’s judgment.
The court ruled last week that it was the Prime Minister who made the decision to leave the EU on 29 March 2017 when she signed the Article 50 notification letter (in which she refers to giving effect to the decision of the people in the referendum – which the Supreme Court ruled was not a legal decision).
The judges asked each other during the hearing, “what was the point of the 2017 Notification of Withdrawal Act?”
Now we know the answer – it was a trick.
The court decided to sidestep the issue by saying we have a political, not legal, problem – but we do not believe it is possible to say that a political crisis exists without and beyond the law; it exists exactly because the law is not being observed.
As private citizens we should be able to take political actions to resolve this, but the political process is so damaged that this seems impossible. The courts are the guardians of our access to the political space and it is their role to help keep the democratic pathways open.
That is all we are asking for: that democratic pathways, including the supremacy of Parliament, be protected and preserved.
We are facing the uncomfortable fact that the decision to leave the EU has been hidden from the public until a week ago. Now it is clear where the decision is located, and how it was taken, the threat to our constitutional order is made plain. As we write, attempts are being made to further diminish the role of Parliament in this issue of critical national importance.
We believe this to be fundamentally wrong. Incidentally, it is something the new Supreme Court said it would fiercely resist in Ahmed – its very first case.
We have to insist on a Parliamentary decision in explicit terms, facing the issue of Brexit head on and taking full account of the consequences for the electorate.
Miller did not make new law. It merely affirmed what we have always known: government is not by decree in the UK. And no Prime Minister should attempt to do so.
We need to stand eight feet tall and say that plainly.
The position taken by the court, and subsequently by government’s counsel, is hugely problematic for our constitutional order.
We have a big and simple thing to say. We must say it confidently, loudly and without apology – this is an underhand cheat, now unmasked, and it cannot be allowed to stand.
For these reasons yesterday we lodged our appeal against refusal of permission.
We believe that our case now goes way beyond Brexit to the heart of democracy in this country and has assumed an importance none of us imagined when we embarked upon this journey a few short months ago.
Please continue to help us by sharing our updates and encouraging all to pledge and share.
We will not rest until this dangerous issue is resolved.
Our Twitter accounts are @a50challenge and @a50official. Please follow us.
Article 50 Challenge is made up essentially of a core team of less than 6 people.
We are all volunteers.
We haven’t taken any money from the Crowdfunding, not even for personal travel and other expenses associated with the case.
All money collected goes directly into the solicitors’ account and they have control of it. Lawyers and barristers are expensive, as is litigation.
If we are unsuccessful in our bid for appeal, the costs should be fairly moderate. If we do win leave for appeal, however, we will need a war chest to cover our own and possible adverse costs.
We are still some way short of our target, and ideally we need to meet that to cover costs of drafting the appeal and court costs. Please continue to pledge what you can and urge others to join us.
Many thanks for your support and please do email us with any queries and we will try to get back to you asap firstname.lastname@example.org.