We are frequently asked how to decide whether to initiate or support a particular legal challenge.
It is not a scientific process leading to an inevitable, indisputable decision, but there are some guidelines that we use based on the experience we have gained over the past 17 months.
What are the essential characteristics of a legal challenge?
· Judiciable – Arguable
There has to be a point of law on which the challenge can be based and argued.
· Legal Standing
The person(s) bringing the challenge must have a specific and legitimate interest in the outcome.
The court has to have jurisdiction over the implementation of the decision for the challenge to have meaning.
· Public Interest
Courts do not decide matters based on a purely academic question or on curiosity. There has to be palpable, tangible and relevant importance to the question the courts are being asked.
In addition to the above any challenge has to be timely, neither premature nor too late. This is where you need the advice and guidance of the very best specialists in the area of law where you are making a challenge.
Do legal challenges work on their own?
In the context we’re talking about, a challenge will not, on its own, change the direction the UK takes. It can, however, open up avenues for further action which previously were apparently unavailable.
The challenge to the Govt over its intention to use Royal Prerogative to trigger an Article 50 exit from the EU was successful. The challenge ensured that Parliament made the decision and demonstrated that Parliament is able to remain in control of both the process and the outcome.
When will The People’s Challenge consider initiating or supporting further legal challenges?
Firstly, all the essential characteristics must be satisfied.
Secondly, The People’s Challenge becoming involved has to be capable of making a difference to the outcome of the challenge.
Thirdly and most importantly, the challenge must have a realistic chance of changing the circumstances or the process under which people and politicians make their decisions. There is enough deception and disillusionment about the UK leaving the EU, without raising false hopes with pointless challenges, or trying to draw the water back upstream of the bridge.
Which of the current challenges will The People’s Challenge support?
We do not have a list of challenges we will or will not support. We have looked at all the challenges that are currently proposed or underway (as at 31st October 2017). Some of these we examined many months ago.
Currently we do not believe that any challenge will undo or invalidate the triggering of the Article 50 notification. But as we said at the start of this piece, evaluating these challenges is not a scientific process with a single indisputable outcome.
There are other challenges, either current or potential, including some of those focused on open access to essential information or ensuring Parliamentary Sovereignty that are viable and that we would consider initiating or supporting – if required and if our involvement would assist.
Obviously challenges based around the Three Knights Opinion fall into the category of those we would consider initiating or supporting.
Whatever we become involved in we must make sure that it would not hinder what is being done via the democratic/parliamentary process. For instance, we would consider initiating or supporting challenges to ensure that the Brexit Impact studies are made public if it would reinforce the work being done in Parliament.
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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.