The People’s Challenge – The path to the Supreme Court

Posted on November 18, 2016 by Grahame Pigney

John Halford, People’s Challenge solicitor

The UK’s Supreme Court was opened in 2009 replacing the Judicial Committee of the House of Lords  as part of a package of constitutional reforms.  It is housed in a grand building on Parliament Square facing the Houses of Parliament and a short walk from the Westminster-based ministries that include David Davis’ Department for Exiting the European Union. This geography is a permanent reminder that Parliamentarians make the law, the Court independently interprets and applies it and government must answer to both.

In just over two weeks, on 5 December, Mr Davis’ lawyers will argue that the invocation of Article 50 is a special case, that his powers to take this step do not come from Parliament, or any Act, but rather the Crown in the form of the Royal Prerogative. There will not be a new argument from them that the EU Referendum was binding and so a source of legal power. Nor will the government argue, its announcements indicate, that an Article 50 notification can be withdrawn if there is Parliamentary intervention at some later date.  So far all the signs are that the government will maintain very similar arguments to those it presented to the Divisional Court.

It might be thought, then, that the Supreme Court hearing will be a premature remake of the drama that unfolded in Court 4 just a few weeks ago. But that would be wrong.  There will be many differences, all calling for careful and hard work by the People’s Challenge legal team, the Claimants’ lawyers and others arguing the Divisional Court was right in holding Mr Davis has to seek power to invoke Article 50 from his fellow MPs in the House, rather than the Palace.

First, both the Scottish and Welsh governments have been given permission to ‘intervene’ to develop the devolution arguments originally raised by the People’s Challenge team from their own perspectives. Both will argue that the devolution arrangements are a further constitutional bulwark against invocation of Article 50 that only and Act of Parliament can dismantle. And, very appropriately, five key devolution questions that are particular to Northern Ireland have been referred to the Court by the Northern Irish Court of Appeal so that they can be considered at the same time as the appeal in Miller and others.  The arguments on Northern Ireland will be presented by the Agnew and McCord legal teams and defended by the government. Northern Ireland’s Attorney General may also make an appearance.

Secondly, many other interventions are being attempted. Two have already been granted permission – those by Fair Deal for Expats (who were involved in the Divisional Court) and from Independent Workers Union of Great Britain. Decisions on others, including one from the pro-leave Lawyers for Britain group, are pending decisions on permission.

All of this will make for a busy hearing. The Court has yet to decide how long each party’s barristers will be allowed to speak – or whether interveners’ barristers as will have the opportunity to speak at all.

And this in turn makes the next step that needs to be taken in the case particularly important. That is for each party and permitted intervener to meticulously prepare their ‘written cases’ – the arguments developing their own positions in the light of what the Divisional Court held and responding to what others have to say.

Work on the People’s Challenge written case is already well underway and a first draft has been circulated amongst the team, enlarged today to include David Gregory who is undertaking further research and analysis on EU rights issues.

The government’s own Written Case has just been served and we will circulate it as soon as it is published. Ms Miller and Mr Dos Santos have until next Friday to file their Written Cases. We have until Tuesday 29 November to file our own.

Supporting these documents will be dozens of comb-bound volumes of statutes, cases, academic articles and other legal material which will also be produced in electronic form for the more technologically savvy. The Supreme Court justices judicial assistants will be looking at much of this material already.

We already know that the Supreme Court takes this case as seriously as it should.  All 11 currently serving justices will hear it – an unprecedented step for the Court. One, Lady Hale, has spoken about the difficult and delicate issues it raises, prompting controversy and even suggestions that she should recuse herself. These are misplaced. Her comments simply identify some of the obvious challenges the case presents for the Court – and will present for Parliament if the appeal is dismissed. They are a very long way away from anything that would cause a fair-minded observer to believe she was biased.

Along with the parties, their lawyers, the Court’s Justices,  press and the  members of the public who arrive early enough to  be admitted to the hearing, the path the Supreme Court is  apparently also going to be walked by Nick Farage and 100,000 supporters to “remind the Government, politicians and the establishment, including the court, that they cannot ignore the democratic vote of the people in the referendum.”

But this is a drama that has a class not of thousands, but millions, 65 million UK citizens to be precise – and many other EU nationals living here in the UK too. All eyes will be on the Court (which will broadcast proceedings live). Many will be hopeful that it will make sure the protection of their rights remains the responsibility of those sitting in Parliament  just opposite the court, and is not handed over to Mr Davis and his civil servants down the road.

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Art. 50 Supreme Court Defence funding target met – Thank you

Posted on November 17, 2016 by Robert Pigney

We are delighted to report to supporters that on the 15th we met our fundraising ‘stretch target’ and are confident that we have sufficient funds to cover the costs of our legal team in the Supreme Court, other expenses and to make a reasonable provision for a share of the Government’s legal costs being awarded against us personally, in the unlikely event that the appeal succeeds.

We are therefore closing the fundraising campaign and will only reopen it if something unforeseen happens which means we need more funds to champion UK Citizens’ rights in the case.

We will send out another update soon explaining the steps that need to be taken between now and the four-day hearing arranged in the Supreme Court from 5 December 2016 onwards, who is now involved and what our team is working on.

For now though, the most important thing is for us to offer our heartfelt thanks to everyone who has supported and sustained us so far in fighting for Parliamentary control and accountability.

Chris, Fergal, Grahame, Paul, Rob & Tahmid.

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People’s Challenge – Developments in Parliament and the Supreme Court

Posted on November 8, 2016 by Grahame Pigney

We had planned to post a detailed update yesterday on our new CrowdJustice campaign page, but events have been very fast-moving and we’ve needed to take stock of them. This is just a snapshot with more detail and analysis to follow.

First, yesterday saw a Government statement and debate in the Commons about the Divisional Court’s decision. More on this to follow, but the key points to note are that the Government continues to accept, rightly, that the extent of its powers needs to be determined by the courts and that the courts’ decisions must be respected, however ‘disappointing’ they may be. This is important because a number of bloggers have continued to argue that the courts had no business in hearing the case at all.

The Government also appears to accept that, if the Royal Prerogative cannot lawfully be used to take the UK out of the EU, only an Act of Parliament will do.

Secondly, the Supreme Court has, unsurprisingly but very quickly, granted the Government permission to make its ‘leapfrog’ appeal which will be heard from 5 December 2016, most likely over the following four days. The Scottish and Welsh Governments both plan to intervene and Nicola Sturgeon has made it clear that she fully supports the Divisional Court decision.

There are also press reports that Leave.EU may intervene, though to do so it will need to persuade the Supreme Court it ought to be granted permission to make submissions in the public interest.

As far as we know, all the parties represented in the Divisional Court will continue to be involved. It is not yet clear whether the Northern Ireland High Court will allow a leapfrog appeal from Maguire J’s decision to be heard along with the Miller and others litigation.

On funding, we are now very close to our stretch target thanks to the sustained support over the last few days. Thank you again. We have asked the Government to agree a ‘reciprocal costs cap’ as was agreed in the Court below, so we should soon have certainty on how much we need to budget for to cover a share of Government costs in the highly unlikely event its appeal succeed.
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An enormous thank you and this is where our Challenge is up to

Posted on November 5, 2016 by Robert Pigney

Fantastically, we have made not only our initial target, but our first stretch target for the relaunched campaign, in just over 24 hours.

Our legal team now has really solid backing for the work they will need to do to defend yesterday’s victory against the Government’s appeal.

You have really staggered us with your support and generosity, all of which are a welcome change from the abuse and nonsense from some quarters.

We will be leaving the our new Crowd Justice campaign running with a revised stretch target of £150,000 which will almost certainly be sufficient for all work connected with the appeal and protection against government costs.

We want to ensure that we are in the very best position to protect people’s rights against the Government’s attempted power grab.

We will update you on Monday with a final budget, but every pledge will be used wisely and effectively to defend both individuals’ rights and Parliamentary Sovereignty.

Thank you once again,

Chris, Fergal, Grahame, Paul, Rob and Tahmid

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Article 50 – the judgment in a nutshell

Posted on November 4, 2016 by Robert Pigney

This went out as an update on our new Crowd Justice camapign page yesterday evening.

On 20 September 1610, Sir Edward Coke, the then Chief Justice, was asked to give a ruling on whether the King could use a Royal Proclamation to suspend an Act of Parliament that had authorised merchants’ trading activities in London. He identified the case as one “of great importance” because it concerned the accountability of “the king to the Commons”. Coke then ruled that the Royal Prerogative could not be used in this way to override rights Parliament had granted.

This morning, 416 years later, Court 4 was packed with lawyers, journalists and members public many of were wondering whether Coke’s successor, the current Lord Chief Justice, Lord Thomas, was about to defend Parliamentary Sovereignty in a similarly courageous way. And minutes later he, the Master of the Rolls and Lord Justice Sales, did just that in a unanimous judgment. The ‘summary of the summary’ was simply this: “the most fundamental rule of the UK constitution is that parliament is sovereign”.

The Court went on to note that all parties in the case agreed the 2016 EU Referendum was advisory only and so had no effect on government powers or those of Parliament. The Referendum was important politically, of course, but had no effect in law. Instead, as revealed in thefull judgment (R (Miller and Others) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)), the Court’s focus was very much on the impact invoking Article 50 would have on ordinary peoples’ rights.

On that, the claimants, interested parties including the People’s Challenge group, and the interveners had also agreed with the Government that withdrawal from the EU by Article 50 would affect UK citizens’ rights that could not be replicated following UK departure from the EU (such as rights to vote, complain to the Commission or to seek a ruling from an EU institution) along with the rights they can exercise in other EU countries (such as free movement and access to health care). The Government had also accepted Article 50, once invoked, could not be reversed.

It followed, said the Court, that triggering Article 50 would inevitably strip away rights with no realistic prospect of Parliament restoring them. Critically, these were rights that had been granted through Acts of Parliament, starting with the European Communities Act 1972. It would be “surprising” if they could be removed by prerogative power, especially given the strong constitutional presumption that Parliament does not, unless it says so expressly, intend the government to have power to change the law of the land using the prerogative. That was a particularly strong presumption here given the importance and scale of the rights at issue. Drawing on a metaphor used by the People’s Challenge QC, Helen Mountfield, in her submissions, the Court observed, that having ‘switched on’ EU law in the UK using a series of statutes, it was implausible that Parliament had anticipated the government could use the Royal Prerogative to “switch it off again”. The proper interpretation of the 1972 Act, informed by constitutional principle, was that the Royal Prerogative had been excluded by incorporation of EU law into UK law.

The Court said it was not necessary to deal with the arguments raised about the Act of Union 1707 but, taking account of points made by the People’s Challenge in their submissions about the special position of devolved nations including Northern Ireland, cast doubt on last week’s judgment of Maguire J in the Belfast High Court. Maguire J will hear an application next week seeking permission to appeal from his own judgment direct to the Supreme Court.

And that is where the Miller case is also headed: Lord Thomas issued a certificate allowing a ‘leapfrog’ appeal from today’s ruling which will be heard by the Supreme Court early in December.

The People’s Challenge remains an interested party and so is entitled to be involved. The three good reasons for it to be involved in this litigation, backed by thousands of crowd funders, remain. So preparations are already underway to defend today’s judgement – and in turn Parliamentary sovereignty – at that hearing. But the importance of today’s ruling cannot be overstated. Lord Coke would be proud, not only of the judges that have followed in his footsteps, but that ordinary UK citizens were able to contribute to the case that made that possible.

By John Hallford, Bindmans LLP

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People’s Challenge salutes Divisional Court as “guardians of parliamentary democracy”

Posted on November 3, 2016 by Robert Pigney

In a landmark decision today, the Divisional Court upheld a judicial review brought by Gina Miller, Dier Dos Santos, the People’s Challenge and others and ruled that the Government cannot use the Royal Prerogative to leave the EU by triggering Article 50.

The Court’s judgment means that the process must be subject to full parliamentary control and oversight. But the government is pursuing an appeal which must be resisted.

The People’s Challenge group has therefore opened a new CrowdJustice campaign in order to raise the money urgently required to defend Parliamentary sovereignty against the government’s appeal which is likely to be heard in early December 2016 by the UK’s Supreme Court.

Thanks to almost 5000 people supporting the People’s Challenge group via Crowd Justice,the interested parties who successfully argued the claim should be allowed included ex pats Grahame and Rob Pigney, Paul Cartwright, a Gibraltarian national who runs Brex-IN, Christopher Formaggia who lives in Wales, Tahmid Chowdhury, a London student and Fergal McFerran, president of the NUS-USI based in Belfast.

Grahame Pigney said today:

“We welcome this decision, which clearly establishes the UK’s Parliament as the sovereign authority in terms of the decisions required following the Referendum on 23rd June. The alternative would have meant a horrifying executive power grab that has no place in a modern democracy.

We started this challenge in order to protect parliamentary sovereignty and the rights of millions of UK Citizens; the Court’s decision has justified our action. Hopefully the debate on and passing of primary legislation by Parliament will result in a more positive and less divisive way forward for the UK.  

We also take pride in our judges, who have shown themselves to be true guardians of parliamentary democracy through this judgment. 

The Government will no doubt appeal. It can expect us to defend our position with the same vigour and commitment as we brought to bear when arguing the case in the Divisional Court.”

Rob Pigney said:

“The People’s Challenge has made a decisive contribution to the success of this case in the Divisional Court. Our backers have been fully vindicated. Although it is doubtful that the Government is going to abandon its ambitions altogether, I feel confident in quoting one of my heroes and saying ‘Now this is not the end. It is not even the beginning of the end. But it is,  perhaps, the end of the beginning.’”

Our solicitor John Halford of Bindmans LLP said:

“The oversight, control and democratic accountability needed for decisions on Brexit have to match the consequences of those decisions for UK citizens. That is why our constitution empowers Parliament, not the government, to take these decisions. The People’s Challenge group and thousands of backers unhesitatingly committed to defending Parliament’s sovereignty. They have prevailed so far and will resist the anticipated government appeal in the Supreme Court.”

As before, during the Supreme Court stage, the group will provide regular updates on the progress of the preparations for the Court hearing, the hearing itself and the funding campaign.

Later today there will be an update on the group’s Crowd Justice pages giving an analysis of the Divisional Court’s decision.

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People’s Challenge: Divisional Court – Judgement Day

Posted on November 2, 2016 by Grahame Pigney

Judgment in the Article 50 challenge will be handed down at 10am, tomorrow 3rd November 2016 in Court Room 4. An appeal by the losing party or parties, ‘leapfrogged’ direct to the Supreme Court to be heard early in December, is very likely.

The People Challenge will be launching a new fundraising appeal tomorrow to cover our lawyers’ costs and other expenses associated with us participating in an appeal as interested parties – we consider it is vital that ordinary people’s EU citizenship rights continue to be defended in this incredibly important case.

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Challenges in Belfast High Court to Government Triggering Article 50

Posted on October 28, 2016 by Grahame Pigney

Judgment was given today by the Belfast High Court dismissing challenges brought on the basis of arguments about the ramifications of invoking Article 50 for the Good Friday Agreement.

These were different arguments to those the People’s Challenge developed at the Divisional Court hearing. The Belfast High Court emphasises this distinction in its judgment. Our legal team will, of course, review what the Belfast Court has said.

Meanwhile, we continue to look forward to the Divisional Court’s judgment which hopefully will be given in the next few days.

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Brexit vote – another Government snow job

Posted on October 20, 2016 by Robert Pigney

This is a severe weather warning, another Government snow job is already under way.

During the recent hearing at the Royal Courts of Justice, the Government said that it is very likely that Parliament will get a vote about Brexit. We are intended to think that this is the same vote the court action is about.

BE WARNED, this is absolutely not the case.

The challenge being heard in court is about the democratic necessity for our Sovereign Parliament to debate and authorise the triggering of Article 50, the “bullet” referred to in court by Lord Pannick, using primary legislation to set out the when, how and with what conditions BEFORE it happens.

The government is referring to a vote by Parliament AFTER Brexit has begun. Our MPs would then be invited to vote on whether the negotiated deal was acceptable or not.

We all know this situation better as “Take it or leave it”. So our MPs would have to choose between whatever had been negotiated (aka “something”) and nothing at all (aka “nothing”).

Today’s Independent (19th October) says such a vote “could halt Brexit”. The paper doesn’t usually get it that wrong. By then, Brexit would long be a foregone conclusion and the only outstanding question would be the extent of the mess.

In what reality would this be a choice? More particularly, a choice for the democratically-elected representatives of the UK people?

It makes a mockery of the role of Parliament, and demonstrates horribly clearly the government’s assessment of our intelligence (amoeba would give us a run for our money according to them) and its view of the importance of honesty and clarity in running our country (we’ll say anything to get what we want).

“Is this any way to run a chip shop?”

Most chip shops are run with more integrity and more respect for the people who hand over the money.

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Who exactly does the Government think it’s kidding?

Posted on October 19, 2016 by Robert Pigney

On Andrew Marr’s programme on 16th October, Priti Patel said that having Brexit debated by Parliament would be like playing poker and showing your hand (to the other people at the table), so that’s why it shouldn’t happen.

She also said that MPs would not be denied a say in the Brexit process. This seems to mean that after, to use Lord Pannick’s term, “the bullet has been fired” (Article 50 has been triggered), Parliament will be permitted to inspect and comment on the corpse.

No-one is now suggesting that Article 50 is reversible.

But how can anyone believe that the UK’s “hand” is a big secret? The idea that there are any wild cards or jokers left unplayed is ludicrous (that was intended to be mildly amusing). “You want to retain access to the single market, and if we disagree you’re going to grizzle? Hey, we didn’t expect that!”, Just one example.

You don’t need a brain surgeon to tell you that the UK government will seek to keep everything that it perceives as advantageous, and to ditch the rest. Admittedly, it would have to guess at what the 37% actually wanted when they voted on 24th June, so wouldn’t it be much easier just to negotiate, excluding Parliament and “the people” from the process, and buy more time to work out what the whole point of the exercise was?

It’s not clear how long it would take to develop “Brexit is Brexit” into a plan that made any kind of sense. Setting a target of the end of March 2017 looks unduly optimistic for such a mammoth task.

As Mr Nick Clegg pointed out on the same programme, Mrs May has already made a tactical error in choosing that date as the deadline for triggering Article 50. Both France and Germany are going to the country next year, and nothing meaningful will happen until after the German elections i.e. towards the end of 2017.

Given that the 2-year clock starts ticking as soon as Article 50 is triggered, that would mean 6 months or so of precious time wasted. Or maybe it’s supposed to be more time to work out that cunning plan?

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