People’s Challenge to Government on Art. 50 – Update No.1

No. 1: Getting Started – John Halford, Bindmans LLP

This is the first of a number of updates to keep you – a supporter of the Crowdjustice funded Article 50 People’s Challenge –  up-to-date with what is happening on the case  and how the money that is being fund raised through CrowdJustice will be used  if the target is reached.  There will also be further updates from the “interested parties” bringing the challenge, Grahame and Rob Pigney, Paul Cartwright, Christopher Formaggia and Tahmid Chowdhury. Jolyon Maugham QC, who first had the idea for a challenge by and for ordinary citizens and raised the money to bring the legal team together, will also provide updates from time to time.

The most important thing to say at this stage is ‘thank you’. This challenge cannot happen without support from you and others like you.  Funds need to be raised both to protect the interested parties from the Government’s legal costs that they could be ordered to pay, and also to pay members of the legal team for some of their time (at rates lower than the Government’s lawyers, I stress).  This is not the kind of case that can be presented properly by fitting in the time needed around paid work.

What has happened so far?

As discussed yesterday in a published blog, the Article 50 litigation began with a judicial review claim issued by hairdresser Dier Dos Santos.  His claim was listed for a ‘directions hearing’ (at which the court makes arrangements  to progress complex litigation) and my firm, Bindmans, was invited to attend because it had already  sent a letter to the government for my clients asking whether it intended to use the Royal Prerogative to activate Article 50.  The Prerogative is the set of residual mediaeval powers which the Monarch delegates to ministers to exercise on her behalf.   They are generally used for extraordinary decision-making, or where  there is no  clear  Parliamentary authority for the use of power,  such as entering into international treaties and granting pardons for criminal offences.

At the hearing, the QC leading our legal team, Helen Mountfield, argued that Bindmans clients ought to have a say as the litigation moved forward.

The court also heard from Lord Pannick QC, who represents Gina Miller.  As she was about to issue a claim and could face the risk of paying the government’s costs in defending its plans to use the Prerogative, hers was made the lead case.  But directions were also made in the Order to allow interested parties to participate.

Grahame, Rob, Paul, Christopher and Tahmid then instructed me jointly to participate in this way. All have separately campaigned about the benefits of EU citizenship rights and, given the outcome of the Referendum, feel very strongly that those rights should not be taken away by the Prime Minister acting alone.  They say only an Act of Parliament will do. Their arguments so far are set out in the Article 50 letter and Summary Grounds document.

Meanwhile, Ms Miller has issued her claim, so the ball is now in the Government’s court.  Its lawyers must produce ‘Detailed Grounds of Resistance’ – a written defence to Ms Miller’s claim – by 2 September 2016.  Ms Miller gets the opportunity to respond to that in a “skeleton argument” to be filed by 14 September.

Provided enough CrowdJustice funds have been raised by then,  the legal team then have an opportunity to put in detailed written arguments on behalf of Grahame, Rob, Paul, Christopher and Tahmid (and anyone else who  has joined the group by that point –  we are in discussion with  others in  Northern Ireland and Scotland).

This will be a critical stage in the proceedings – the first opportunity to make a powerful response to the Government’s defence of its position.   There will need to be a significant amount of legal research and careful drafting to make sure the best use is made of it.

Further written submissions will be made and then the court will hear the case on the 13th and 17th of October.  It has been listed to fit in with the commitments of the most senior judge outside of the Supreme Court, John Thomas who is the Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales.  He will hear it in a specially-convened “Divisional Court” most likely with two other judges.  Generally cases in the High Court are heard by a single judge alone.

It is very unlikely that the case will be concluded in this way, however.  Even at the preliminary hearing, the judges indicated that they thought it should proceed to the Supreme Court on a fast-track basis, and officials were sent away to check the Supreme Court justices diaries for December.

The stakes are high.  As Grahame has said,  each and every one of the U.K.’s 65 million nationals are directly affected by this case,  which is one of the reasons why  a range of people, not just one or two,  is being allowed to  put arguments to the courts.

Thank you again for your support in making that possible. Although the fundraising campaign is gaining momentum, the first few days are critical and so please do share information about it with everyone you are in contact with  directly and through social media. Grahame, Rob, Paul, Christopher and Tahmid are counting on your support  to enable them  to speak up for you.

John Halford

Bindmans LLP

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