Almost exactly a year ago the germ of an idea started to develop at The People’s Challenge, based on the High Court decision in the Miller case and the work our legal team had done for the Supreme Court defence against the Government’s appeal.
If Parliament had to authorise the Article 50 notification of intention to leave the EU, wouldn’t they also have to make a decision to authorise leaving the EU once the terms were known? We sketched an outline of our thoughts and asked John Halford at Bindmans LLP to explore it from a legal standpoint.
During January the legal team started shaping the arguments based on the question. By the time the Supreme Court handed down its decision in the Miller case, we had a clearer idea of what was required.
By the time the EU (Notification of Withdrawal) Bill was published at the end of January, the legal team was sufficiently confident on the issues for us to produce briefing documents for MPs and Peers about the requirement for an Act of Parliament once the terms were known.
We continued this work during the progress of the EU (NoW) Bill through Parliament.
In parallel, what was now known as the Three Knights Opinion was being finalised and was ready to be published in mid-February.
Our final briefings to Peers and MPs included the published Three Knights Opinion.
As we know, the EU (NoW) Bill eventually went through in a very brief form and received its Royal Assent on 16th March 2017.
It was clear to us that there would, in all probability, have to be a reference to the CJEU at some point to get a definitive answer on the question of unilateral revocability of the Article 50 notification. The primary reason for this was that it was essential for Parliament and the public to understand what the options were, when it was time to decide whether the withdrawal terms were acceptable or not.
With the legal team, we considered the possibility of mounting a campaign ourselves. It was clear that we were not the people best placed to initiate such a claim, as we may well not have been able to get past the permissions stage. As ever there was also the question of timing.
Our view was that parliamentarians, particularly Westminster MPs, would be best placed to bring such a challenge as they would ultimately have to decide what course to take when the terms of the withdrawn agreement were known.
Nevertheless, we were ready to intervene or assist if we could add to an eventual challenge and offered to do so where it seemed appropriate.
The challenge by Andy Wightman & others was the first that looked as if it had serious “legs” and even so they had a long struggle to get the Court of Session to refer the question to the CJEU.
Also Chris Leslie MP and Tom Brake MP decided to intervene in the case, increasing the number of Westminster MPs. Just as importantly, John Halford at Bindmans and Gerry Facena QC, one of our QCs in the Miller case and a co-author of the Three Knights Opinion, agreed to act for them.
We have already commented on the hearing at the CJEU in Luxembourg and the Opinion written by the Avocat General assigned to the case.
The CJEU’s ruling justifies not only the Opinion written by Sir David Edward QC, Sir Francis Jacobs QC, Sir Jeremy Lever QC and the QCs that acted for us in R (Miller) vs SSExEU, Helen Mountfield QC and Gerry Facenna QC, but also the initiative started nearly a year ago with the support of our backers.
Today’s ruling is not only crucial in the campaign for our Parliament to take back control from an increasingly authoritarian government, it is a stunning example of perseverance and the power that people have when they believe in what they’re championing and work together.
Congratulations and thanks to the named individuals in the case, whether claimants or interveners:
Andy Wightman MSP, Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP, Jolyon Maugham QC, Joanna Cherry QC MP and Chris Leslie MP, Tom Brake MP;
the two legal teams and above all the thousands of people who helped fund this long journey and make the result possible.
BTW, we are asked from time to time why this wasn’t resolved during the Miller case.
During the hearings in the Miller case, the Government had asserted that once they had triggered Article 50 there was no going back. It was an assertion we were quite prepared to go along with, as it strengthened the arguments in favour of ensuring Parliamentary sovereignty.
Note 1. Court of Justice of the European Union.
The Court of Justice of the European Union (CJEU) has one judge from each Member State, assisted by eleven advocates general whose role is to consider the written and oral submissions to the court in every case that raises a new point of law, and deliver an impartial opinion to the court on the legal solution. Although Advocates General are full members of the court, they do not take part in the court‘s deliberations, and the Advocate General’s opinion is not binding on the court.
Although the court reaches the same solution as the Advocate General more often than not, it cannot usually be stated that the advocate general’s opinion has been ‘followed’ in any given case, because the court may have reached the same conclusion via different legal reasoning. The role of Advocate General is created by Article 19(2) of the Treaty on European Union and Articles 253 and 254 of the Treaty on the Functioning of the European Union.
Note 2. The Three Knights Opinion.
The Three Knights Opinion was commissioned by The Peoples Challenge after successfully resisting the Government’s attempt to use Royal Prerogative to trigger the Article 50 notification.
The Opinion’s authors are Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC (retired) and the QCs that acted for the People’s Challenge Group in R (Miller) vs SSExEU, Helen Mountfield QC and Gerry Facenna QC.
Sir David Edward QC practised at the Bar in Scotland prior to his appointment as the United Kingdom’s Judge at the European Court of First Instance from 1989-1992 and subsequently Judge of the European Court of Justice from 1992 until 2004. In 2004 he returned to become a part-time judge of the Court of Session in Scotland. He is a Privy Councillor, Professor Emeritus at the University of Edinburgh and an Honorary Fellow of University College, Oxford.
Sir Francis Jacobs QC served as the United Kingdom’s Advocate General at the European Court of Justice from 1988 to 2006, having previously combined an academic career as Professor of European Law at the University of London with practice at the Bar. He is the President of the Centre of European Law at King’s College London and a visiting professor at the College of Europe. He was appointed a Privy Councillor in December 2005 and continues to practice at the Bar.
Sir Jeremy Lever QC is one of the most senior and respected figures in EU and competition law. During his more than fifty years at the Bar he acted in many of the leading cases in the fields of European law, competition law, and regulatory public law, including on behalf of the UK Government, the European Commission and the European Parliament. He is a Distinguished Fellow and Senior Dean of All Souls College, Oxford and in 2003 was knighted for services to European Law.
Note 3. Supreme Court decision in R (Miller) vs SSExEU
The People’s Challenge played a significant part in the arguments in the Divisional and Supreme Courts which resulted in the ruling that the Government was not allowed to trigger the Article 50 notification using Royal Prerogative and it required primary legislation by Parliament because of the implications for UK citizen’s fundamental rights.
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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.