It is now becoming clear that the Brexit deal, billed as “the easiest in human history,” is in fact a state of purgatory transition which will wait (forever) for magical technology to find a solution to the Northern Ireland border conundrum. 

Dominic Grieve MP clearly summarised the position this week: 

“we are leaving the EU, but we are going to place ourselves in a relationship with the EU where we lose all influence over decision making, and are likely to be subservient to the EU in critical areas about the nature of our future trading relationship with them.”

There are apparently still some sticking points before a deal can be agreed. The drama surrounding the process is merely obfuscation to herd Westminster to vote for May’s horrible deal, as they’ve been led to believe the only alternative is the catastrophic “No Deal”. 

However, many now realise, through sheer lack of preparation, “no deal” is a bluff and not a viable option. See this article from Sir Keir Starmer MP:

https://www.independent.co.uk/news/uk/politics/theresa-may-no-deal-brexit-labour-conservative-keir-starmer-a8622606.html

PLEASE HELP TO ENSURE OUR MPs GAIN INSIGHT 

It's vital we all support Jolyon Maugham’s case soon to be heard in CJEU.

The numbers in the commons look tight, and the fear of ‘no deal’ may make some MPs feel May’s deal is better than “no deal”. Ultimately, for MPs to make an informed decision, we need legal certainty on whether the Article 50 notification is unilaterally revocable and only the CJEU can answer this question.  Jolyon Maugham QC has been working on this case since early 2017. His extensive and protracted fight in the Scottish courts has ensured an expedited hearing in the CJEU on 27 November – the same date as Theresa May’s scheduled “meaningful vote”.

The Government recently failed in a desperate last-ditch attempt to keep Parliament in the dark – their application for appeal has been refused.

https://www.theguardian.com/politics/2018/nov/08/uk-cannot-stop-brexit-article-50-case-going-to-ecj-says-scottish-court?CMP=share_btn_tw 

Please make sure you support Jo Maugham’s case by making a donation and urging others to do the same by sharing this update on social media.

https://www.crowdjustice.com/case/strengthening/

ARTICLE 50 CHALLENGE 

We still await news of our application for leave to appeal from the Court of Appeal.

UKEU CHALLENGE

A permission hearing has been tabled in the High Court on 7 December. The legal team also wrote to the Prime Minister on 6 November, again asking that she rethink her position following recent developments related to the Vote Leave campaign. 

Update available here: https://www.crowdjustice.com/case/ukineuchallenge/ 

NEW JUDICIAL REVIEW - #UKEUCHALLENGE

We strongly urge all our donors to support this new initiative by donating what you can and sharing the crowdfunder for UKEUChallenge https://www.crowdjustice.com/case/ukineuchallenge/

It is heartwarming to know a new challenge which builds on the achievements of #A50Challenge is now underway. There’s every possibility, assuming the court agrees to expedite, the hearing could be as soon as October.

The Supreme Court ruled in Miller there was no legal decision in the referendum because it was advisory only. It was also held ministers alone cannot make major constitutional changes.  Our sovereign Parliament has to make decisions by passing Acts which change the law.

We brought A50Challenge because we couldn’t find the decision to leave the EU. The Government in Freedom of Information requests returned different answers every time. Eventually on 12/6/18 the court in the permission hearing for #a50challenge ruled the Prime Minister, not Parliament, made the decision to leave the EU when she sent the long notification letter, citing the ‘democratic decision of the people of the UK’. 

The Parliamentary Act associated with “triggering of A50” merely identified the Prime Minister as the notifier. (A power she would always have had once a constitutional decision had been made.)

The judgment in our permission hearing made an unusual step in identifying the decision and declaring it citable.  This has ensured a new case can be brought free of the time bar, but it has also left open a door for the possibility for leave for appeal.  We have to now work out a strategy to ensure the best result for us all and we are working closely with UKEUChallenge.

Here is a summary of the new case by Dr Robert Palmer from Open University:

There is a principal issue underlying the case that poses a simple question: is a lawful, free and fair vote one of the constitutional requirements of the UK? It's asked after 2 Electoral Commission (EC) Reports found that illegality & corruption dogged the ref campaign. 

Let me make this clear. The Electoral Commission findings were to the criminal standard of proof (beyond reasonable doubt) & serious offences were committed by the designated campaign for leaving the EU (& others), in breach of the statutory framework established by Parliament for the referendum. 

It is submitted that the PM's decision & notification to leave the EU was premised on a 'fundamental error of fact' and was not made in accordance with the UK’s constitutional requirements as required by A50(1) & (2) TEU and/or 'are vitiated' by the corruption & illegality. 

Although the referendum was advisory, the common law principles of legality & constitutionality still apply. So, when considering how & when to exercise her statutory power under s.1(1) the EU Notification Act 2017 the PM had to act lawfully (in line with public law & constitutional principles).

UKEUChallenge seek declarations that both the Decision and Notification 'were unlawful on established electoral and public law principles and/or not in accordance with the constitutional requirements of the UK'. Thus, shouldn't be treated as, lawful and/or constitutional. 

The PM's decision and (dependent) notification were vitiated by conduct that fell within the definition of ‘corrupt and illegal practices’ in the Representation of the People Act 1983 (& similar legislation) which the Electoral Commission has found to have taken place (beyond reasonable doubt). 

Those 'corrupt and illegal practices' were in breach of the statutory requirements established by and under the EU Referendum Act 2015, as well as other conduct (such that was identified by the Information Commissioner, regarding personal data etc.). 

The ref was advisory/consultative (not binding) therefore the legal validity of the Decision and Notification have been impaired (vitiated) for two main reasons; first, by depending solely upon the flawed consultation. 

The 2nd reason that the legal validity of the PM's decison and notification have been impaired is because, despite the advisory nature of the referendum, both were founded upon promises to honour & implement the result. The findings of the Electoral Commission further vitiate honouring that result. 

The case submits that it is irrational for the PM to treat the referendum result as binding which, had it been binding, would be void following the Electoral Commission findings (clearly the result of the ref would have been affected by illegalities and corruption). 

Irrationality aside, it is unlawful. As counsel submits that when Parliament gave the PM power to notify it should not be taken to have disapplied principles of legality and constitutionality. In addition it is in breach of s.6 HRA and Art.3 of the First Protocol (A3P1). 

In line with constitutionality the PM is not permitted to ignore the findings of the EC or 'to take no material steps' or not 'to give anxious scrutiny to their import or otherwise in response to them'. It must be remembered that the investigations began BEFORE notification. 

That is the case in a nutshell. The Claimants are asking the court to declare that the legal validity of the Decision & Notification are impaired (vitiated) owing to corruption & illegality; they are also asked to quash both the Decision and Notification for those reasons. 

Introduction

The prospect of the United Kingdom’s withdrawal from the European Union seems to distort the political space and time so much that the left hand loses touch with the right and that men forget today their cherished thoughts of yesterday.  Men find inspiration in slogans like “Take Back Control” and catchphrases like “Global Britain”. They are led on by that will-o’-the-wisp, “The Will of the People”. The resulting febrile atmosphere has blurred the vision of our politicians and led them into legal errors which this legal challenge, sustained by Liz Webster and her team, aims to demonstrate and to have put right.

Aim of Appeal

We aim to sustain the proposition that Parliament did not authorise the withdrawal process which the Prime Minister initiated on 29 March 2017. On 12 June 2018 we failed to convince the High Court of our case. We now hope to convince the Court of Appeal. On the face of it, our proposition is absurd and extraordinary. The Prime Minister, on 29 March 2017, signed and had delivered her letter of withdrawal, and no one in public doubted her right to do so.  However, there were, and are, strong grounds for doubt.

The aim of Liz Webster’s appeal is to establish that the High Court was wrong in several respects, indeed fundamentally wrong, and that the Court of Appeal should allow the claim for judicial review to go ahead to a full trial.

Ministerial Error

The root of the issue is that the Government has confused an expression of popular will for an instruction or mandate to itself, and has in its confusion ducked its responsibility to take the first and substantive step, namely the decision of policy, in the withdrawal process. 

Ever since the day after the referendum, Ministers of the Crown have propagated error and confusion over the Brexit process, and in two ways in particular. Firstly, they have declared that the British people gave to Parliament and to Government instructions to quit the EU. Secondly, Ministers have said that the key step on this path is to “trigger Article 50” of the Treaty on European Union. The first statement inaccurately describes the meaning of the referendum vote. The second statement misleadingly conflates two steps on the path to Brexit. The first step is to make, not just to confirm or implement, a decision to leave under Article 50(1). This is a distinctive step, which requires a political decision. The second, and formal, step is to give notice of intention to quit the European Union under Article 50(2). Either Parliament or Government must take these steps. For Government to take one or other of these steps, it needs Parliamentary authority, as the judgments of the Supreme Court and the Divisional Court in the case brought by Ms Gina Miller have established.

High Court’s effort to repair the Governmental Error

Parliamentarians were told by Ministers to implement the common will of the people, and Parliament did so by authorising the Prime Minister to give notice of withdrawal under the second paragraph of Article 50(2) of the Treaty of European Union. Parliament did not itself decide that the UK should leave the EU, and, in our contention, it did not authorise the Prime Minister so to decide. However, the High Court, presiding over our present case, took the opposite view. It observed that a decision on one point, i.e. notification, obviously includes the other, i.e. the decision on withdrawal. Accordingly, so the Court held, the Prime Minister received from Parliament a delegated power to decide to withdraw the UK from the EU and she acted within the scope of that power. We shall show that the Court was wrong on both counts.

First Mistake of the High Court

By normal rules of statutory interpretation the Court’s rulings would be understandable but, in this instance, the Court was wrong, because the sponsoring Ministers, as well as the Prime Minister herself, had declared on many occasions that the British people had decided the matter of withdrawal, that there was no scope for any further political decision and that Parliament was under a duty to implement the People’s decision. To our knowledge, no MP openly disputed such a definition of Parliament’s role and duty.

Action of Prime Minister

The Prime Minister received her authority and duly signed the letter giving notice of withdrawal. In that letter she stressed and repeated that the British people had decided to leave the EU. She did not endorse or adopt that decision. She evinced no intention to take the first step which Article 50 requires, namely a decision on the substance of withdrawal, but she moved straight to the second step, the giving of notice. The Court has no reason to conclude that she took that first step.

Second Mistake of the High Court

Secondly, it was not open for the Court to imply into the relevant Act of Parliament, namely the European Union (Notification of Withdrawal) Act 2017 (the “Act”), a decision or intention contrary to the intention expressed in the long title to the Act. That long title reads “An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.”

It is the practice for judges to try to make sense out of a problematic Act of Parliament. They will do so, where necessary, by implying into the Act extra words that will give effect to the intention of the legislature. In so doing, judges are bound by the rules of the common law. In particular, if they are minded to impute or imply extra words into an Act, they should take heed of the long title of the Act and they should take note of ministerial statements bearing on the purpose of the legislation.

In the present case, the High Court took a wide view of its power to determine the purpose of the Act but a narrow view of the factors which it should heed in making that determination. It ruled (paragraph §13 of its judgment) that the Act “plainly contemplated and encompassed the power to take a decision to withdraw”. In this, it disregarded the long title of the Act. It further ruled that “the Prime Minister’s letter itself contains a decision” and (in paragraph §15) that the letter spoke “the language of decision not of notification”. Although the Court was right to find that “there would indeed be no point in giving notice of withdrawal in the absence of a decision to withdraw under Article 50(1)”, it was wrong to draw the conclusion that there must have been an implicit decision to withdraw. It was wrong because it disregarded the fact that Parliament had been told, and by all indications had accepted, that the decision to withdraw had already been made. Since Parliament effectively treated the political will of the electorate as if it were a legal decision, the Court can neither hold that Parliament decided the policy of withdrawal nor impute to Parliament an intention to let the Prime Minister decide the policy.

Distinction between Decision to Withdraw and Notification of Decision

This point is crucial, since the Divisional Court in Miller, as later confirmed by the Supreme Court, having determined that the decision to leave the EU affects the fundamental rights of citizen, concluded that the Prime Minister, without the authority of Parliament, could neither decide to withdraw the UK from the EU nor give notice of withdrawal. The Miller Court stated, at paragraph §16 of the judgement at first instance, that:

“The notification under Article 50(2) is of a decision under Article 50(1). If the Crown has no prerogative power under the constitutional law of the UK to give notice under Article 50(2) then it would appear to follow that under the provisions of Article 50(1) it cannot on behalf of the United Kingdom acting solely under its prerogative powers, make a decision to withdraw in accordance with the United Kingdom’s own constitutional requirements.”

Thus, in the declared absence of prerogative power and in default of Parliamentary authority, the Prime Minister had no power to make the decision to withdraw. Moreover, contrary to the gloss put on her words by the High Court in the present action, she never made any pretence to make such a decision. Indeed, one might conclude that she studiously avoided making any such decision.

Moreover, if she had considered that she was making a decision on the withdrawal of the UK, one may suppose that she would have acted on legal advice to ensure that the decision was watertight. If her letter of 29 March 2017 is a decision on a matter of substance, taken under a delegated power, the letter must conform to the rules of English administrative law. Those rules broadly require that, in exercising the power, the Prime Minister must decide for herself, must found her decision on reasons which she openly avows, and must not defer to the judgement or will of any other person, or even to the voice of the electorate. On the face of it, in all these respects the letter is deficient. One may conclude that she did not intend the letter to constitute a decision of substance. If she did not intend it, the Court may not conclude otherwise.

High Court’s Third Error

Nevertheless, the High Court, at paragraph §15 of its judgement of 12 June, ruled that the Prime Minister’s letter of withdrawal complied with the UK’s constitutional requirements under Article 50. Indeed the Court declared that any contrary contention was totally without merit. In short, the Court did not understand the arguments.

Consequences of Government Errors of Procedure

In matters of such moment as we are considering the public might reasonably expect the Government to act prudently, with minute attention to the legal requirements. If our claim is valid, and the government has committed legal errors in the Brexit process, it is unworthy of the government to argue, as it has argued, that its errors should be overlooked because of the momentous consequences that could ensue, if our claim were upheld and a Court declaration of error were pronounced. It is not only unworthy but also short-sighted. It would be far better for government and the country that any proven errors should be put right in a domestic forum than exposed in the forum of the European Court of Justice.

Problem of Time Limit for the Claim

At the same time we cannot ignore the fact that the three-month time limit for judicial review is a stumbling block. To be reasonably sure of being within the time limit, Liz Webster would have had to file the claim by 27 June 2017. In fact she filed it on 12 December 2017. That does not it make it completely hopeless. One reason for hope is that the Court has discretion to extend the time limit. Another is that the Government obstructed the formulation of a claim, by failing to identify a decision which the Claimant could contest. This was despite many requests made for it to do so under the Freedom of Information Act. A third reason is that every step of the negotiations leading eventually to withdrawal is itself a new and unauthorised act, for which the time limit for challenge starts afresh. A fourth reason is that it is in the public interest to have the matter immediately resolved in the domestic courts of the UK rather than in the European Court, which is likely to be charged with any future dispute over the interpretation of instruments and agreements relating to Brexit.

Conclusion

In conclusion, with some good hope of success, and with your support, Liz Webster and her team plan to continue the fight to ensure good government acting within the law.

The full Divisional Court judgment from last week’s hearing can be found here.

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.  Facebook Page: Article 50 challenge. Please follow us.

Our CrowdJustice page is here: www.a50challenge.uk.  

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.  

The Dilemmas

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 4pm.  

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.

Funding

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  - [email protected]. 

Sadly, this morning at the High Court in London, we were refused permission to apply for Judicial Review.  We will post a more detailed update once the judgment is published.

Very briefly, the judges concluded that the Article 50(1) decision to leave the EU was contained in the notification letter sent by Theresa May on 29 March 2017, and that no further constitutional steps were necessary.  The Prime Minister made the decision "backed by the authority of the 2017 Act" (the Notification Act).

They also ruled that the application was out of time and did not accept our grounds for extension.

We are considering our next steps and will issue a further update very soon.

This week news has finally emerged that a case brought by a French lawyer, Julien Fouchet, on behalf of Mr Shindler and other British clients will be heard on 5th July in Luxembourg.  Five judges of the General Court of the EU will hear arguments that the EU referendum was illegal, having excluded many of those most affected - Britons who have lived, exercising their free movement rights, in other parts of the EU. http://curia.europa.eu/juris/document/document.jsf?text=&docid=195626&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=861717

It has become clear that the Fouchet case together with Article 50 Challenge could potentially map out extinction for Brexit.  In the UK we know that the referendum was not a constitutional decision to leave, just a consultative exercise that Parliament agreed to, with minimal checks and balances to test opinion. It didn’t matter too much to the courts who voted in the referendum because it only had political not legal effect, as confirmed in Miller Supreme Court judgment:            

124. Thus, the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.                                    

Mr Shindler (British national living in Europe) brought a case in the UK courts before the referendum in early 2016 in the hope of changing the franchise, the Court ruled against him, because the referendum vote was not determinative. 

19.  I accept that Parliament is sovereign and that it does not need the mandate of a referendum to give it the power to withdraw from the EU. But by passing the 2015 Act, Parliament has decided that it will not withdraw from the EU unless a withdrawal is supported by referendum. In theory, Parliament could decide to withdraw without waiting for the result of the referendum despite the passing of the 2015 Act. But this is no more than a theoretical possibility. The reality is that it has decided that it will withdraw only if that course is sanctioned by the referendum that it has set in train. In other words, the referendum (if it supports a withdrawal) is an integral part of the process of deciding to withdraw from the EU. In short, by passing the 2015 Act, Parliament decided that one of the constitutional requirements that had to be satisfied as a condition of a withdrawal from the EU was a referendum.”    https://www.judiciary.uk/wp-content/uploads/2016/05/approved-judgment-rhd-shindler-2.pdf     

However, the Government informed the EU institutions in its A50 notification letter that the referendum result, as confirmed by EUNoWA, was the actual decision, not just a consultative exercise that Parliament decided had to be gone through before the decision was made. Link to Theresa May’s letter https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/604079/Prime_Ministers_letter_to_European_Council_President_Donald_Tusk.pdf

So Shindler’s case is proceeding before the General Court on the basis that, contrary to what the Government is saying in the #A50Challenge case, the referendum result is the decision. 

Effectively the Shindler case now before the EU Court is a re-run of his 2016 UK case, except this time on the basis that the referendum is decisive. EU law, including the principle of equality, will be relevant and an EU Court gets to decide whether A50(1) has legal effect.

The Government has not intervened in the EU Schindler case, because that would make matters worse. It cannot win a case in the UK on the basis of one set of legal arguments and expect to win a case in Luxembourg by making completely contradictory claims. 

The decision fudge will inevitably cause big problems for this Brexit. 

Please keep supporting #A50Challenge by continuing to pledge what you can and by encouraging your friends and family to join us.

We really need your help to reach the funding target A50challenge.uk

YOUR CONTINUED SUPPORT IS ESSENTIAL

We are busy finalising our skeleton arguments for the hearing on 12th June in the High Court.  We will publish our arguments as soon as it is appropriate to do so.

In the event we are denied permission, it is critical we are armed with the determination and resolve to push on to the Court of Appeal, where a panel of judges will be able to share the burden of allowing a hearing for this highly significant case. 

We are still some way short of our funding target and therefore need urgent assistance to ensure we can continue. Please keep donating what you can and encourage others to join us in this vital struggle to protect our constitution. The more members backing this challenge, the louder the message we send.

Please share our fundraising page: a50challenge.uk 

Interestingly, Helen Mountfield QC has written an article clearly agreeing with our conclusions that the EU Notification Bill only gave the prime minister power to give notice of her current intention to withdraw the UK from the European Union. Parliament has not made a decision to leave the EU.  Which begs the question: where did this “intention” arise?

 https://www.prospectmagazine.co.uk/politics/the-governments-brexit-stance-is-riddled-with-legal-confusion

Richard Bird wrote an in-depth analysis last year on how we have arrived at this ludicrous position, and it is worth re-reading at this time:

https://www.huffingtonpost.co.uk/richard-bird/eu-referendum_b_17002040.html

Cart Before the Horse

Over the last 45 years, referendums have been used by UK Governments to seek the electorate's consent on a desired change.  In a representative democracy, the only types of referendum which can improve democracy are those with clearly defined, achievable outcomes. The Good Friday Agreement referendum, for example, was defined in exquisite detail before people voted. Had it been presented along same lines as the EU referendum, the NI referendum would have been held before any talks had taken place, the choices would have been simply ‘Do you want peace? Yes/No’, and the campaign would have been full of vague promises from NI politicians, with no explanation as to how they would be implemented.

Holding a vote on leaving the EU before defining exactly what leaving meant, allowed Leave campaigners to fill in the blanks with a myriad of comforting lies and fantasy outcomes. Now the negotiations have begun and reality is diverging further and further from what people thought they were voting for – leading to ever-louder cries of ‘That’s not my Brexit!’ from voters who were misled.

Permission Hearing Approaching

On 12 June Article 50 Challenge will present arguments in the High Court as to why this vitally important issue needs to proceed to a full Judicial Review. This is a public hearing and anyone is welcome to attend. The hearing has been allocated for two hours but we won’t know timing until the day before. 

Rather than focusing on the substance of the question, the Government is relying heavily on an assertion that we brought the claim outside the three-month rule for Judicial Review, and is also claiming that our action would be detrimental to good administration. 

We will during this hearing present strong arguments, including: 

1. Withdrawal from the EU must be done in accordance with the procedure prescribed by Article 50 of The Treaty on European Union (TEU).  Article 50(1) states that a Member State may “decide to withdraw” from the EU “in accordance with its own constitutional requirements”.  Although it may seem surprising, no such decision has, in fact, been made. 

2. The Government has had numerous opportunities to identify the decision it has made to leave the EU:

3. 
   

   1. It failed to do so in the Miller case.

   2. It also failed to do so in the purported notification letter sent to the European Council on 29 March 2017, in which it identified the referendum result as the decision.  The Supreme Court in Miller held that the force of the referendum was “political rather than legal”. 

   3. In response to various queries, the Government changed its position and identified the decision to leave the EU as having “involved a number of steps”, none of which could, logically, have constituted a decision.

   4. Finally, on 28 November 2017, in response to our pre-action letter, the Government set out for the first time that no decision had, in fact, been taken at all because, in their view, no decision was required.

4. It is therefore apparent common ground between the parties that the UK has not made a “decision to withdraw” from the EU that accords with the UK’s constitutional requirements.

5. Our claim was brought within three months from the 28 November 2017 crystallisation of the Government’s position on the ‘decision’ question and is therefore not out of time.

6. Far from being detrimental to good administration, our claim is necessary to ensure the latter; if the issue is not resolved in the UK courts there is a significant risk that it will be raised at a later date in the European Court (CJEU), for example during the process of approving any Withdrawal Agreement by the European Parliament. If the Withdrawal Agreement were found by the CJEU to be unlawful, the consequences would, to say the least, be far-reaching.

7. If there has been no decision to withdraw from the EU within the meaning of Article 50(1) TEU, the Government has no authority to conduct the withdrawal negotiations for which Article 50(2) provides. We seek a declaration from the court in those terms.

However, we have to be ready to face the real possibility that we may not win permission in this June High Court hearing. 

We are therefore preparing the ground to ensure we can press ahead to the Court of Appeal, where a panel of judges will find it easier to share the burden of a potentially ‘awkward’ judgment. 

We need to ensure we have sufficient funds for this eventuality, so we ask everyone to keep helping by sharing our updates and encouraging friends and family to join us by pledging. 

Please follow us on Facebook and Twitter (@a50challenge and @a50official) for updates on the time of the hearing.

Today we launched a new initiative, The Scottish Question - #A50Scotland. 

We are applying to intervene in the Scottish Judicial Review proceedings on the unilateral revocability of Article 50. Here is a link to the Crowdfunding page: https://crowdjustice.com/case/a50scotland

Having read the opinion of the Scottish Court which was released last month, it occurred to us that you cannot answer the question on whether Article 50 is revocable without confirming its validity. Here is a copy of our Press Release:

PRESS RELEASE

Article 50 Challenge – The Scottish Question

The A50 Challenge campaign group is challenging the Government’s conduct of the Brexit process. The group is going to the High Court in London to seek permission to apply for Judicial Review. A hearing is due in London on 12th June.

The group has now announced that they intend to intervene in proceedings being taken by Andy Wightman, a Green Member of the Scottish Parliament, and other Green, SNP, Labour and Liberal Democrat MSPs, MPs and MEPs. The petitioners in the Scottish case are seeking a decision on whether, as a matter of EU law, the Article 50 notice can be withdrawn The Court of Session has recently allowed their application for Judicial Review to proceed. A hearing is due to take place in Edinburgh, also on 12th June, when the Court will consider the application and whether to refer the question to the European Court.

A50 Challenge is asking the Court of Session to first consider whether the notice can be cancelled under UK law, and whether the notice is actually valid.  “Our aim is to help clarify the issues that have been put before the Court”, explains Liz Webster, the claimant in the A50 Challenge case. “We do not object to the case being referred to the European Court. Far from it.  But when considering whether or not the Article 50 notice can be withdrawn, the Courts do need to consider the current position under UK law.” 

Wightman’s lawyers will be resisting Ms Webster’s application to intervene.  “We do not see any overlap between the issues in your JR and ours,” they advised her by email, yesterday,   “nor do we see that you have any real interest (given the Petitioners that we have)”.  A50 Challenge are undeterred. “It is regrettable that Mr Wightman and his colleagues have taken such a stance,” they say. “But it is for the Court to decide whether the issues we have raised our relevant to their case.”  

Professor AC Grayling is a prominent supporter of the A50 Challenge. “The decision as to whether the UK should leave the EU is ultimately one for the UK Parliament, and it must not be deprived of that right”, he argues, “Nor should it be allowed to shirk that responsibility”.

A50 Challenge has launched A50 Scotland as a separate crowdfunding appeal to fund its intervention into what Ms Webster calls “the Scottish question”. So far nearly 6,000 people have donated to the A50 Challenge crowdfunding appeal.  

Q&A here: https://drive.google.com/open?id=1C4qbA5acBKW4wdx7a86lMpJnc8fbM_ja 

Please visit the #A50Scotland page and support if you can!  https://crowdjustice.com/case/a50scotland

Article 50 Challenge has published a response to David Allen Green’s article.

On 9 April 2018 David Allen Green, a leading legal writer at the FT, published an article on the Article 50 Challenge. His article may be found here:

http://jackofkent.com/2018/04/does-the-article-50-challenge-have-any-merit/ 

We promised to respond, and we have now published our response here:

https://drive.google.com/open?id=1-u4vahfaoNs9G45AC2tASf7lRnOVvowv 

A reminder: our permission hearing is scheduled for 12 June 2018 in London.

In order for Article 50 Challenge to have the best chance of success, we need funds and membership numbers. Please contribute what you can afford, and let people know what’s at stake and how they can become informed and be on the right side of history.

David Allen Green is a lawyer and journalist. He writes about law and policy for the FT.  He also writes a personal blog called the Jack of Kent blog. David is a consultant at the law firm Preiskel & Co LLP in the Temple, London.

Article 50 Challenge is tabled for an oral permission hearing in the High Court on 12 June.

The overwhelming argument for a Judicial Review of Article 50 is much bigger than Brexit – it goes to the very heart of ensuring the survival of democracy in the UK. Law is technical and to many it’s boring, or doesn’t make sense, but to value democracy, we all have to demand that the law be upheld.

Ordinarily, we wouldn’t need to be bothered with such details, but in the absence of a present and correct Opposition, we the people have to act to save democracy.

It appears that many fear a legal challenge to the perceived “will of the people” and are reluctant to examine a seemingly technical legal point that is easily dismissed as an attempt to scupper Brexit. We need to delve deeper, putting the political pressure of the referendum result to one side, and consider how our constitution should function, to understand how it has malfunctioned since the vote, and why we should all be concerned by this assault on the established rule of law. Article 50 Challenge cannot stop Brexit – it can merely demand that if Brexit is to happen it must be legally sound.

In simple terms, a party which wins a majority in a General Election gets to table legislation in Parliament based on its manifesto commitments; at all times Parliament should be sovereign. The Conservative Party won in 2015 and one of its promises was to hold an advisory referendum on EU membership. (Another was to abolish the rule disenfranchising UK citizens living abroad for more than 15 years, which they have thus far failed to implement.)  A supermajority wasn’t set due to the advisory status of the EU referendum bill passed in the preceding parliament. The then Prime Minister, David Cameron, declared the Government would deliver the result of the referendum – a promise that was not in his power to keep and that had no legal significance. It did, however, exemplify the Government’s willingness to mislead the public for reasons of party politics. 

Fast forward to June 24th 2016 and panic in the Conservative Party over how to keep a promise that wasn’t theirs to make in the first place. A new Prime Minister, Theresa May, threatened to introduce so-called “Henry VIII powers” to invoke Article 50, leading to the Miller judgment that declared that the referendum was advisory, the withdrawal decision must be explicit in statute, and that an Act of Parliament was required to allow the Prime Minister to give notification.

With a promise made in haste to invoke Article 50 before the end of March 2017, Theresa May and Secretary of State for Exiting the EU, David Davis, rushed through a short bill which became the EU (Notification of Withdrawal) Act. Through its brevity and with the explicit presumption of a decision already made, the Bill sidestepped Parliamentary debate of the Referendum result. As far as the country, Europe, and the world were concerned Article 50 was as good as triggered when that Bill went through both Houses of Parliament in early 2017.

The Government ignored its own lawyers’ warnings against a short Bill, resulting in an Act which merely gave power to the PM to notify. Article 50(1) of the Treaty on European Union demands a constitutionally valid withdrawal decision which, per the Miller ruling, must be explicit in statute; the Act does not provide it.  Inexplicably, the Government has since disclosed in court papers that no decision to leave the EU exists and they say they didn’t need one. It’s akin to being authorised to notify planning permission without a decision being made. In order to make a decision, impact assessment and plans would be needed to to inform the decision makers.

So through smoke and mirrors and sleight of hand, the executive has misled Parliament, the UK and the EU into believing Article 50 has been validly invoked. But why would a Government want to fudge legislation on the biggest constitutional decision in a lifetime? People have been so focused on the arguments surrounding Brexit, it is necessary to step outside of the bubble and consider what are the overall goals of Brexit — evidence points to a power grab that will reduce rights and protections. The EU is not the only target of the “Brextremists”; the real target is democracy and all the checks and balances that protect us, the people.

To summarise, whilst many are busy worrying about the details of the fallout of Brexit, it is paramount to analyse the changes the Brexit process is forging through our constitution. It’s like introducing a foreign body and forcing it through a circulatory system, causing new arteries to form and old ones to close down. A legal precedent is being created which means a Government can in the future subvert Parliament and force through extreme constitutional changes without the scrutiny of Parliament or need for a constitutionally valid decision.

Article 50 Challenge is tabled for a two hour oral permission hearing in the High Court on 12th June. This hearing is open to the public and members are welcome to attend. 

Judicial Review is subject to time restrictions, and the Government appear to be relying on this as their principle defence. Counsel remain positive that we have sufficient arguments and case law to persuade the court we must be permitted a full hearing. However, should we fail to gain permission on 12th June, we are determined to push on to the Court of Appeal to obtain it there.

There is no quick fix for where we are, but with grit and determination we are doing all we can to fight this aggressive assault on our democracy. In order for Article 50 Challenge to have the best chance of success, we need funds and membership numbers. Please contribute what you can afford, and let people know what’s at stake and how they can become informed and be on the right side of history.

We are pleased to announce that an oral hearing has been granted by the Court in mid April in the Administrative Court in London.

A summary of recent events:

• On 28th February 2018, the Court decided that our paper application for permission to apply for judicial review of the Government's conduct of the Brexit negotiations should be refused. It would have been wonderful to sail through the paper application stage, but our legal team always predicted, given the complexities and magnitude of this case, we would face having to renew the application to an oral hearing.

• On 8th March a notice of renewal of our claim for permission to apply was lodged with the Court and served on the Secretary of State.

• The permission application has been listed for an oral hearing on 17 April 2018 in the Administrative Court in London.  However, we are in the process of making an application to the court for an adjournment, as the hearing is likely to take longer than the time currently allocated.  Please note, therefore, that this date may be subject to change, but we will keep you informed.

Counsel remains very optimistic that the Court will give permission to apply for judicial review once it has heard oral argument at a hearing. 

Summary of Legal Arguments So Far

The primary reason the Court rejected our application was that it decided the claim was out of time because, in its view, the grounds for challenge first arose when the notification letter was sent by the Prime Minister on 29 March 2017.  This was more than three months before we issued our claim. 

The Court also decided that there had been an undue delay in progressing the claim which was detrimental to good administration.  

The final reason for rejecting the claim was the Court's view on the papers that the claim was unarguable.

We maintain the claim is not out of time and an extension of time is therefore not necessary.  We say that the claim can be brought independently against the ongoing course of the Brexit negotiations without being linked to the 29 March 2017 notification.  

Additionally, the Government's failure to make its position clear on whether and how it made a decision (for instance, in response to Freedom of Information Act Requests made by the Article 50 Challenge team last year) means that the three-month time limit for bringing a claim did not begin to run on 29 March 2017.  The Government’s position – that no decision was necessary once Parliament had provided authorisation to send the notification letter – was only set out when responding to our letter of claim on 28 November 2017.

We maintain that the claim was brought promptly in all circumstances.  Once we knew the exact nature of the Secretary of State's position that there had been no decision and a decision was not necessary, we acted promptly by bringing the claim just over three weeks later.  In addition, whether or not there had been undue delay, we say that good administration actually requires that the claim be heard by a Court in the UK and not Europe. Otherwise, if the matter is not determined substantively in the UK, there is a significant risk that the issues in this case could be decided later by the Court of Justice of the European Union (CJEU).

With regard to whether the claim is unarguable, Article 50 is clear that a decision must be made.  The Secretary of State has not identified – and appears not to be able to identify – a decision to withdraw the UK from the European Union made in a way which is recognised under UK law.  Our position remains that the claim is arguable and has a real prospect of success.

What next?

As we now face an oral permission hearing, this means further costs. Fundraising is key and we need to be prepared to go all the way to the CJEU if necessary.

When can we expect further news?

We should hear news from the Court soon with a firm date for the hearing. It is is a public hearing and anyone can attend.

We will provide an update as soon as we know the date.

How to help

The campaign needs more supporters. 

Donations are important. But just as important is that a large number of individuals have joined the challenge. The higher that number, the more influential we become and the harder we are to ignore – it’s as simple as that. 

CrowdJustice counts each supporter who makes a contribution to the campaign, regardless of the amount of the donation. Please encourage people you know to join with us. We understand that even the minimum contribution of £5 is too much for some budgets. If you can, consider funding the contributions of supporters you know who can’t afford it, and let them be counted too.

Please help us grow our membership!

Ahead of any news from the courts, we want to prepare our supporters for what might happen next.

When will we hear from the Court?

Counsel have indicated we should hear something from the court within the next couple of weeks. However, the courts are over-subscribed so it is very difficult to estimate timings. The permission stage can be protracted. 

What outcomes can we expect when seeking permission for a hearing?

Normally a judge reviews the papers and makes a decision to: 

1.    Grant a full hearing, or

2.    Order a hearing to decide if permission should be granted or 

3.    Refuse permission. 

Should permission be refused on paper an applicant can apply to renew the application, in which case the papers will be sent to another judge for consideration.

If a permission hearing is granted and a judge denies permission at that hearing, an applicant can appeal against that decision.

If a full hearing is granted,a court date will be set.

Therefore in theory our case has three ‘bites of the cherry’ to overcome hurdles of permission. The Government has laboured the point that we are out of time as Judicial Review is meant to be brought within three months of an event.  However our legal team have put together robust arguments as to why this is a red herring - Article 50 is an ongoing process and as the whole thing gets reviewed by the CJEU at the end of the negotiating period, it is best to answer this question sooner rather than later.

Another Article 50 invalidity claim was recently refused permission. Doesn’t that mean ours is just as likely to be thrown out?

Other invalidity claims have been brought by litigants in person – essentially individuals going it alone without counsel. The Article 50 Challenge has engaged a high calibre legal team headed by Hugh Mercer QC, with experience in international, EU, and UK constitutional law. Judges’ decisions to grant permission are based on how well the arguments are prepared in the papers before them. Given the different experience levels between a litigant in person and Hugh Mercer’s team, there is simply too much else at play to assume the court’s review of the claims would end in the same conclusion.

Interesting Article by David Wolchover, Barrister 

David Wolchover argues that even if it is held that Parliament validly authorised the PM to trigger Article 50, her doing so may have still been beyond her powers. See Mr Wolchover’s article here.

How to help

The campaign needs more supporters. 

Donations are important. But just as important is that a large number of individuals have joined the challenge. The higher that number, the more influential we become and the harder we are to ignore – it’s as simple as that. 

CrowdJustice counts each supporter who makes a contribution to the campaign, regardless of the amount of the donation. Please encourage people you know to join with us. We understand that even the minimum contribution of £5 is too much for some budgets. If you can, consider funding the contributions of supporters you know who can’t afford it, and let them be counted too.

A big thank-you goes out to those who recently helped us break through the 5,000-member mark. That was a great effort and really showed what we can do.

Please help us grow our membership!

The Secretary of State acknowledged service of our proceedings (Statement of Facts & Grounds were served on 28 December 2017) indicating that he intended to contest them and served Summary Grounds of Resistance on 12 January 2018. 

In HMG’s Response, it is notable that the Secretary of State fails to identify in his Summary Grounds of Resistance the Article 50(1) decision (see Article 50 here).

Our position is that an identifiable decision to withdraw is required, but the Secretary of State appears to maintain that no such decision was necessary.  He claims that in the Miller case the Supreme Court decided what was required for notification under Article 50(2) as a matter of domestic law and that those requirements were complied with by the European Union (Notification of Withdrawal) Act and subsequent letter of notification from the Prime Minister. 

However, in the Miller case the court was not asked to decide whether there had been compliance with Article 50(1). Our claim is that a ruling on what is required for the purposes of notification under Article 50(2) is not a ruling on what is required for the prior stage of making a constitutionally valid decision to withdraw under Article 50(1).

The Secretary of State also claims that as individuals we have no right to complain of a failure by the UK to comply with the requirements of Article 50, which he claims regulates the relations between international states. However, the issue in this case is not one of international relations, but the prior issue of whether the UK has made a constitutionally valid decision to withdraw from the EU. We say that this is a domestic issue and no such decision has been made.

The main focus of the Secretary of State’s Summary Grounds of Resistance is that permission for judicial review should be refused by the court as the claim is substantially out of time having not been brought promptly and in any event within three months after the grounds to make it first arose. The Secretary of State maintains that the grounds first arose when the notification was given on 29 March 2017. We reject this. 

Our argument is that although we did not challenge the commencement of the process through the courts, this does not preclude us from challenging its outcome. This is an issue of utmost constitutional importance, which needs to be resolved now rather than at the end of the process and possibly by the courts in Europe. Further, if an extension of time is required, given the constitutional significance of the case, an extension of time should be granted.

Next Steps

In consultation with our legal team, we decided to submit a reply in light of the Government’s Summary Grounds of Resistance, and this was filed today (29 January 2018) in the hope that it will reach and be considered by the relevant judge when deciding whether to grant permission on paper. By convention, any replies that are received before a case is sent to a judge to consider permission will be put before the judge. It is then a matter for the judge as to whether he/she is willing to consider the reply.

In terms of the next steps, the claim papers will be sent to a judge. The judge will then consider them and determine whether to grant permission for us to apply for judicial review.

There are a number of different orders that may be made by the judge following consideration of the papers: permission may be granted in full or part or permission may be refused. If permission is refused, we can (and will) renew our application for a hearing at which oral submissions can be made. The judge can also order that permission be adjourned to an oral hearing. The judge can also make a “Totally Without Merit Order” which will conclude the claim, although there are appeal rights albeit subject to tight time limits. 

The decision-making process is relatively quick and we should have a decision on the papers within the next few weeks. Our legal team remain optimistic that permission should be granted in this case. 

We realise how important it is to keep our donors updated, however at times it is difficult to strike a balance. We totally appreciate your continued support but if you do have any queries please do forward them to our email account [email protected] and we will do our best to respond. Please bear in mind the team running this Crowdfunding account are all volunteers; only the solicitors and counsel are receiving payment (at reduced rates) for their services. 

We have received a response to our Statement of Facts and Grounds from the Government. Counsel are holding a conference with solicitors on Monday afternoon and we hope to be able to provide a more substantive update after that. We would like to publish all documents but we are being advised by lawyers not to do so at this juncture.

Please bear in mind, this case is of significant constitutional importance and we are led by the professional advice provided by our expert legal team.

Thank you for your continued support and patience.

We wish you all a Happy New Year.  The first part of 2018 should see #A50Challenge forge ahead to make history in the High Court and, very probably, the Supreme Court.  Thank you all for helping to make this happen.  This legal challenge is now approaching 4,350 members; we hope to break records by making this the largest ever people’s challenge, so please keep encouraging others to join us.

We are making waves! The Lawyer, a specialist monthly legal publication, has selected #A50Challenge as one of the top 20 cases for 2018. Their annual feature is due to be published week commencing 15 January and we will provide you with a copy as soon as it’s available.

Our Statement of Facts and Grounds, bundles and claim form were formally served on the Secretary of State for Exiting the EU on 28 December 2017. The Government has 21 days to respond. 

It is difficult to provide a timetable for next steps as the matter is now with the court. However, because this case is of huge constitutional importance we have requested that it be expedited. We await a response from the Secretary of State.

As we approach our current fundraising target we must look ahead to the next stretch target, which will be set at £200,000. Most of you are aware — though it bears repeating — that our fundraising targets will continue to stretch as the campaign moves forward. Doing so means we are making progress, the case remains strong, and we are not deterred. With the Government having confirmed receipt of the papers and with the expectation that a hearing date will soon be fixed, there is plenty of work to do. This is a big case and you are part of it!

How to help

The Article 50 Challenge can only keep going with your help. We have to be prepared to fight beyond the High Court to the Supreme Court, with the possibility of referral to the ECJ. The costs will be significant, but negligible in comparison to the overall costs of a disorganised Brexit. 

We know many of you have pledged before, and your ongoing support is what we’ll need to see this through. Please continue to support the Challenge by contributing whatever amount your circumstances will permit. Small donations really add up, and all donations are accepted with gratitude.

Don’t underestimate the other things you can do to help broaden our support base. With more people in the pool, the financial burden can be far less impactful on each of us.

• Email five friends inviting them to pledge to the Article 50 Challenge.

• Post a link to http://tinyurl.com/a50challenge on Facebook asking network friends to pledge.

• Use WhatsApp or Messenger with a link to http://tinyurl.com/a50challenge to Facebook asking friends to pledge.

• Tweet in support using http://tinyurl.com/a50challenge and #A50Challenge.

Please don’t forget to talk to people. It is essential that people’s complacency with the Article 50 process be challenged. Many believe it’s a done deal and that nothing can be changed. Gently help them to become educated on this important but widely misunderstood subject. Whatever the outcome of the Challenge, increasing public awareness will inevitably affect Parliamentary voting patterns.

Thank you for being our partners in helping make the right thing happen.

We have today filed in the High Court in London, seeking permission for a hearing.

News of our filing with the High Court was reported today in The Independent - link here.

This is a significant milestone. While the act of filing for Judicial Review is straightforward and administrative, in reality an extraordinary amount of work goes into the statement of facts and grounds required for this permission stage. This has been the primary focus of counsel for the past several weeks. Upon filing, the Government and interested parties (in this case, the devolved administrations) will be served with papers. 

Put simply, we argue that Article 50 requires a decision to be made ‘according to a member state’s constitutional requirements’ before any notice can be served. Parliament has never delegated the withdrawal decision to the people and has never made the withdrawal decision itself, and therefore our Article 50 notification is invalid and illegal.

The key criterion for obtaining permission for a hearing is that the case for an error in law be arguable. Our advice is that the Article 50 Challenge meets this criterion. It is normal and expected that the Government will reply with their grounds of defence, i.e. why they say the case is not arguable.

If permission is refused, we will “renew” the decision to be heard in open court. If granted, the claim can proceed with a final hearing. Once in court, Judicial Reviews seldom take more than a few days and may well be over in a day.

We do not know how long it will take for the Administrative Court to respond about the permission we seek, and of course their response time will be affected by the holidays. See below for a summary of the Judicial Review process.

“Whether you are for or against Brexit, we believe it is a democratic scandal that the public and Parliament have been misled by Mrs May, David Davis and others. It is an abuse of our constitution,” says Liz Webster claimant in the Article 50 Challenge case. Reasons2Remain published an article by Liz Webster on 13 December about the Article 50 Challenge - link here.

The Judicial Review Process

Judicial review (JR) is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

Steps of Judicial Review Procedure:

A formal letter is sent to the proposed defendant setting out the claim. Normally a response is expected within 14 days. (Article 50 Challenge has received Government’s response to our Letter - see update 29.11.17)

Lodge the JR claim in the Administrative Court (which is a branch of the High Court) to apply for “permission.” The primary test for obtaining permission to proceed is that the case is deemed to be arguable. (Counsel is currently finalising the claim form and statement of facts to be lodged/filed around 21.12.17).

Once issued, the defendant is served and any interested parties are served with the papers. (Devolved Governments have been cited as interested parties). 

The court then sends the papers to a judge for a decision on paper. If permission is refused, we can "renew" the decision to be heard in open court. The other parties may or may not attend. 

If permission is granted, the claim proper can proceed with a final hearing. JRs seldom take more than three days in court, and many in our experience are over within one day.

Our CrowdJustice page

Getting the Article 50 Challenge launched has been a whirlwind of competing priorities, with our attention spread thinly across legal, fundraising and PR activities. We are just coming up for air.

Something that directly affects our donors is the quality of the information we provide on the CrowdJustice page, including our periodic updates. We are the first to admit that in prioritising legal readiness, our CrowdJustice page did not get the attention it deserved at the outset. While rich in content, it suffered in clarity and presentation. We are putting that right and have made changes – please take a fresh look at the page if you haven’t seen it lately. The improvements we’ve made are qualitative only, to communicate the points more clearly and succinctly. The facts and propositions of the case have not changed. Our promise to you, our donors, is to provide you with quality information so that you always have a good understanding of the case, its premise, and how it is progressing.

How to help

The Article 50 Challenge can only keep going with your help. Our fundraising targets will continue to stretch as the campaign progresses. We have to be prepared to fight beyond the High Court to the Supreme Court with possibility of referral to the ECJ. Inevitably the costs will be significant but negligible in comparison to the overall costs of Brexit. We know many of you have pledged before, and your ongoing support is what we’ll need to see this through. Please continue to support the Challenge by contributing whatever amount your circumstances will permit. Small donations really add up, and all donations are accepted with gratitude.

There are other things you can do to help broaden our support base. With more people in the pool, the financial burden can be far less impactful on each of us.

Email five friends inviting them to pledge to the Article 50 Challenge

Post a link to http://tinyurl.com/a50challenge on Facebook asking network friends to pledge

Use WhatsApp or Messenger with a link to http://tinyurl.com/a50challenge to Facebook asking friends to pledge

Tweet in support using http://tinyurl.com/a50challenge and #A50Challenge.

Please don’t forget to talk to people. It is essential that peoples’ complacency with the Article 50 process be challenged. Many people think it’s a done deal and that nothing can be done. Help them to become educated on this important but widely misunderstood subject. Whatever the outcome of the Challenge, increasing public awareness will inevitably affect Parliamentary voting patterns.

Thank you for being our partners in helping make the right thing happen.

Our solicitors and counsel (Gwion Lewis and Hugh Mercer QC)  met yesterday, 4 December. We are all buoyed up by progress, and our confidence in our case, based on positive advice, continues to build. 

Most people will be unaware that the validity of the Brexit arrangements, whatever they are, have to go before the European Court of Justice to be signed off.  This issue cannot be left unaddressed.

Some may see this invalidity case as just a ploy to stop Brexit. However, if we don’t deal with this now, we are storing up trouble - any deal depends on Article 50 and can be struck down at any time if the process was invalid, including after we’ve left.  Even a “no deal” Brexit can be struck down.

Therefore, it is essential this is decided now, once and for all, both for the UK and our EU partners. Additionally, there is a compelling political argument for a UK court to answer the question.  A ruling by the ECJ at the end that it’s all invalid would be an embarrassing calamity to say the least.

We are now working to file with the court in around 14 days’ time; the pressure to expedite is enormous but counsel are adamant the “Statement of Facts and Grounds”, which is a formal document required to file a case such as this, must be prepared thoroughly - “only fools rush in …”

Donors not familiar with legal cases may find the progress slow and protracted, but it is a front-loaded process and behind the scenes there is a lot of activity.  To date, we have used donations to instruct solicitors and barristers (referred to as “counsel” above).  They have drafted and sent a Letter of Claim which set out our key points to the Government and the response was received last week.  Now, they are preparing the Statement of Facts and Grounds mentioned above and when that is done, the action will be filed in the court. 

After we have filed,  the court will consider whether to grant permission for the case to proceed based on the paperwork or in a hearing.  We are advised that any objection for permission to be granted is highly unlikely to be sustained for several reasons; one being that leaving the matter unresolved means it will have to be settled by the ECJ at one point or another.   

We are unable to issue projected timelines at this stage, but we shall do so when we can.

We are working on the basis that total costs at first instance could be as high as £200,000 and we must be prepared for this case to escalate up to the Supreme Court whoever wins. This is why we shall be fundraising throughout to ensure we can pursue the matter to the end.

We need your continued help to reach the current £125,000 stretch target.  We know many of you have pledged more than once, so if you can't pledge again now, please don’t worry.

In addition to pledging, you can help by urging your family, colleagues and friends to pledge by, say: 

• posting a link to Facebook and sharing the link https://www.crowdjustice.com/case/a50-chall-her-e50/
• asking friends to pledge
• tweeting in support with quoting #A50Challenge and using the link https://www.crowdjustice.com/case/a50-chall-her-e50/
• emailing friends and family
• encouraging donation by word of mouth!

Finally, we’d like to say a big thank you to all of you for your continued support - both your financial support and the inspiring comments - we do read all of them!

The government’s response to our letter of claim was received, and our solicitors are now instructed to issue proceedings in the High Court as soon as possible. The government’s response contains no argument that had not been considered before. Our confidence in our case, based on positive advice, is undiminished.

Next steps

Our solicitors and Gwion Lewis and Hugh Mercer QC of counsel will be in conference early next week. Preparation of the claim will be a collaborative effort between solicitors and both counsel. Proceedings will be issued as soon as possible and we shall report further next week after the conference with counsel has taken place.

When filing in the High Court, there is always a risk that the case will not be heard. Both counsel agree that any argument that the case should not be heard is highly unlikely to succeed.

How to help

The Article 50 Challenge can only keep going with your help. Our fundraising stretch target is now set at £125,000. We know many of you have pledged before, and your ongoing support is what we’ll need to see this through. Please continue to support the Challenge by contributing whatever amount your circumstances will permit. Small donations really add up, and all donations are accepted with gratitude.

There are other things you can do to help broaden our support base. With more people in the pool, the financial burden can be far less impactful on all of us.

Email five friends inviting them to pledge to the Article 50 Challenge

Post a link to http://tinyurl.com/a50challenge on Facebook asking network friends to pledge

Use WhatsApp or Messenger with a link to http://tinyurl.com/a50challenge to Facebook asking friends to pledge

Tweet in support using http://tinyurl.com/a50challenge and #A50Challenge.

Please don’t forget to talk to people. It is essential that peoples’ complacency with the Article 50 process be challenged. Help them to become educated on this important but widely misunderstood subject. Whatever the outcome of the Challenge, increasing public awareness will inevitably affect Parliamentary voting patterns.

Thank you for being our partners in helping make the right thing happen.

Government response to letter of claim due next week

The government’s response to our letter of claim is due by the end of next week. Once received, we will issue proceedings in the High Court.

No accountability for Brexit - the point of the Article 50 Challenge

At its core, the Article 50 Challenge is about restoring Parliamentary sovereignty over the question of whether the UK remains in the EU, or leaves. Because Parliament was never asked to debate the Referendum result and decide what is right for the country and its people, it is not in a position of ownership and accountability. This is what we seek to change.

If Parliament had made the decision to leave the EU (as we say it is obliged to do by law) and owned it, then Parliamentarians would be reviewing the decision to leave the EU in light of the relentlessly increasing evidence of expected damage to the economy, services and social fabric.

Article 50 Myth-buster 

Questions have come up this week from donors about the Gina Miller case and the Supreme Court’s ruling in it, and the revocability of Article 50. We imagine others may have similar questions or concerns, so we’ve prepared the table below in the hope it can help clarify any misapprehensions.

In the case brought by Gina Miller, the government’s own lawyers said that if they lost:

“Parliament must be asked to answer precisely the same question which was put by Parliament to the electorate and has been answered in the referendum, and must give the same answer in legislative form.”

In Miller, the Supreme Court ruled that an Act of Parliament was required to invoke Article 50. It further meant, as the Court stressed, that the Referendum result could not constitutionally stand as the withdrawal decision. The appropriate response would have been for the government to ask Parliament for a decision to leave the EU and to put it in legislative form, precisely as the government’s own lawyers had clearly articulated in the quotation above. It is that decision, and that decision alone, that enables Article 50 to be triggered.

Instead, they introduced the European Union (Notice of Withdrawal) Bill 2017 (EU NoW Bill), which asked only for authority to notify, with David Davis, Lord Bridges, Baroness Evans and others claiming that the decision had already been made. It’s worth pointing out that notification does not require any authority that the Prime Minister did not already have; in fact notification is an obligation under Article 50 once a decision is made.

Did they know they were asking the wrong question of Parliament? In short, yes. Government lawyers understood what was needed, and the Bill’s deficiency was pointed out by many including Jo Maugham, and ignored.

They must have also known they were taking a gamble, so why the smoke and mirrors? We can only speculate, but it is reasonable to infer that they sought to prevent parliamentary debate on the result of the Referendum for fear of a rough passage, delays or a different outcome. Also, asking for a decision from Parliament would have exposed the government’s misleading rhetoric as doing so stands in contradiction of their persistent claim that the people would decide.

In real terms the EU NoW Bill, which became the Act, provided a smoke screen to give the appearance of legitimacy to the subsequent triggering of Article 50 while preventing Parliament from debating the result of the Referendum.

The Article 50 Challenge can only keep going with your help. Please continue to support the Challenge by contributing whatever amount your circumstances will permit. Small donations really add up, and all donations are accepted with gratitude.

There are other things you can do to help broaden our support base. With more people in the pool, the financial burden can be far less impactful on all of us.

Email five friends inviting them to pledge to the Article 50 Challenge

Post a link to http://tinyurl.com/a50challenge on Facebook asking network friends to pledge

Use WhatsApp or Messenger with a link to http://tinyurl.com/a50challenge to Facebook asking friends to pledge

Tweet in support using http://tinyurl.com/a50challenge and #A50Challenge.

Please don’t forget to talk to people. It is essential that peoples’ complacency with the Article 50 process be challenged. Help them to become educated on this important but widely misunderstood subject. Whatever the outcome of the Challenge, increasing public awareness will inevitably affect Parliamentary voting patterns.

Thank you for being our partners in helping make the right thing happen.

A letter of claim has gone to the government today, to put them on notice that court proceedings may be brought. It sets out the remedy required which is a declaration that there has been no valid decision to leave the EU. The devolved administrations have been cited as interested parties and copies have gone to EU institutions for information.

A response is required within 14 days and the action will be commenced shortly after that.

The new target

A case such as this must be done properly, and no corners can be cut. When all is said and done, the case is likely to have been through several stages. In fact it is entirely likely that it will go to the Supreme Court, and a European Court of Justice reference is also possible. The total cost is unknowable at this stage, which is why we proceed with new fundraising targets as completed steps tell us we’re good to go for the next steps. Each stretch target is what we think we need in each stage to enable us to go to the next one.

Costs for the high court alone may reach £200,000. We hope not, but we should be ready for costs in that range.

The new stretch target is £125,000 from 17 November 2017, and we need to reach it in the next 30 days.

The Article 50 Challenge can only keep going with your help. Please continue to support the Challenge by contributing whatever amount your circumstances will permit. Small donations really add up, and all donations are accepted with gratitude.

Another great way to help the Challenge is to help us broaden our support base.

Email five friends inviting them to pledge to the Article 50 Challenge

Post a link to http://tinyurl.com/a50challenge on Facebook asking network friends to pledge

Use WhatsApp or Messenger with a link to http://tinyurl.com/a50challenge to Facebook asking friends to pledge

Tweet in support using http://tinyurl.com/a50challenge and #A50Challenge.

And please don’t forget to talk to people. It is essential that peoples’ complacency with the Article 50 process be challenged. Help them to become educated on this important but widely misunderstood subject. Whatever the outcome of the Challenge, increasing public awareness will inevitably affect Parliamentary voting patterns.

Thank you for being our partners in helping make the right thing happen.

The aim of the Article 50 Challenge is to stop Brexit in its tracks and put Parliament back in the driving seat where it belongs. Because if this aim – the restoration of our Parliamentary democracy - we consider this campaign to be of the utmost importance.

We know there are other initiatives underway with varying overlapping aims to stop Brexit, and sometimes the lines can seem blurry. One that has had some recent attention is Lord Kerr’s suggestion of revocability of Article 50. It’s worth teasing apart the main differences between our “invalidity” approach and the Lord Kerr “revocability” approach.

To begin with, both are perfectly relevant and valid approaches, but one is not a substitute for the other. The key distinction is that while our “invalidity” approach would nullify the Article 50 notification, it would very likely be against the will of the Government (save for a sudden and surprising change of heart). “Revocability” would only happen through a decision and subsequent action taken by the Government, which seems unlikely in the current environment.

It’s important to note that Article 50 (paragraph 3) indicates that a decision to leave, once notified, is irrevocable. By extension, this suggests a default “no deal” outcome if, in fact, we reach the end of the two-year period with no deal and no extension agreed. So on the face of there can be no unilateral revocation and Parliament can't stop a "no deal" scenario. There are lawyers who argue otherwise (e.g. Three Knights Opinion), but it's not an easy argument and is far from proven.

In our view, the “revocability” argument is a worthy pursuit but must be seen as Plan B because it relies on a Government policy U-turn. The “invalidity” argument can stop Brexit in its tracks regardless of Government policy.

Help us continue our work on Plan A; it’s the way to stop Brexit in its tracks. Please support the Challenge by contributing whatever amount your circumstances will permit. Small donations really add up, and all donations are accepted with gratitude.

There are other things you can do to help broaden our support base.

Email five friends inviting them to pledge to the Article 50 Challenge

Post a link to http://tinyurl.com/a50challenge on Facebook asking network friends to pledge

Use WhatsApp or Messenger with a link to http://tinyurl.com/a50challenge to Facebook asking friends to pledge

Tweet in support using http://tinyurl.com/a50challenge and #A50Challenge.

Thank you for being our partners in helping make the right thing happen.

Making history together!

This week we will send the Letter of claim (or Letter before action) to the government. We will do so as we hit our £75,000 target, giving us the confidence we need that we are building a solid support base and will have the backing we need to see this through. Thank you for being part of this success.

We will need to wait a short time for their response. Assuming nothing unexpected, our action to challenge the validity of Brexit will be launched at the earliest opportunity.

The Article 50 Challenge can only keep going with your help. Please continue to support the Challenge by contributing whatever amount your circumstances will permit. Small donations really add up, and all donations are accepted with gratitude.

There are other things you can do to help broaden our support base.

Email five friends inviting them to pledge to the Article 50 Challenge

Post a link to http://tinyurl.com/a50challenge on Facebook asking network friends to pledge

Use WhatsApp or Messenger with a link to http://tinyurl.com/a50challenge to Facebook asking friends to pledge

Tweet in support using http://tinyurl.com/a50challenge and #A50Challenge.

Theresa May’s fixed exit day amendment is significant and is worth exploring here.

In the Repeal Bill, “exit day” was defined as a date to be chosen by Ministers instead of as the day we leave the EU under Article 50 - the obvious "exit day" (assuming the Article 50 process is found to be valid).

Theresa May is today saying the exit date will be set as 29 March 2019 - again instead of the day we leave the EU under Article 50.

Article 50 is explicit. Exit day is, by default, two years from the notification of a decision to withdraw from the EU. It may be sooner if an agreement is struck, and it may be later if all parties agree that more time is needed. The key point is that all eventualities are covered when exit day is defined to be the day the Treaties cease to apply to the UK, providing synchronisation between the exit from the EU and the migrated laws coming into effect.

So, what might be the motive for fixing the date? We can only speculate. It’s reasonable to infer the government are worried, and it’s not unreasonable to consider that their concern is, at least in part, related to the validity of the UK’s Article 50 notification. But whatever the concern, by hard-wiring a date the government will be obliged by law to exit the EU on that date regardless of our Article 50 compliance. This would simplify the implementation of the government’s “Brexit at all cost” policy, but would not encourage the good-faith pursuit of the best, most prosperous and compliant Brexit for the country.

What is clear is that a fixed exit date leaves the UK with the fewest options in future circumstances that cannot be known. The government’s motives in presenting this amendment must be viewed with scepticism.

We continue to be encouraged by the activism of the groups and individuals who want to see our democracy restored. The Article 50 Challenge belongs to all of us, and we greatly appreciate your support. If the Challenge succeeds, Brexit will stop in its tracks and Parliament will be back in control. If that is an outcome you want, please continue to support the Challenge by contributing whatever amount your circumstances will permit. Small donations really add up, and all donations are accepted with gratitude.

 You can also help by emailing 5 friends, tweeting with the hashtag #a50challenge and sharing the link on Facebook, Messenger, WhatsApp, and anywhere else that will get the word out there. And please talk to people. It is essential that peoples’ complacency with the Article 50 process is challenged. Help them to become educated on this important but widely misunderstood subject.

We are delighted to announce that Hugh Mercer QC of Essex Court Chambers and Gwion Lewis of Landmark Chambers are instructed on this matter and that work on the pre-action protocol has commenced.

The £40,000 raised toward the initial campaign target has enabled us to commence the action. It is extremely gratifying to have reached this point, and having done so we again seek your assistance in helping us reach our stretch target of £75,000. The sooner we can do this, the sooner we can ensure our readiness to proceed without delay.

If won, the Article 50 Challenge will stop Brexit in its tracks and will put the decision to Leave or Remain back with Parliament where it belongs. If that is an outcome you want, please continue to support the Challenge by contributing whatever amount your circumstances will permit. Small donations really add up, and all donations are accepted with gratitude.

You can also help by emailing 5 friends, tweeting with the hashtag #a50challenge and sharing the link on Facebook, Messenger, WhatsApp, and anywhere else that will get the word out there. And please talk to people. It is essential that peoples’ complacency with the Article 50 process is challenged. Help them to become educated on this important but widely misunderstood subject.

Thank you to all our donors. With your generous support we have hit the initial target amount with more than two weeks to spare. This is not only encouraging for the Challenge but it sends a clear signal to all interested parties to say that this campaign is serious and is gathering momentum. We are proud and humbled to have moved to our next stretch fundraising target.

A meeting with our QC and junior counsel is planned for next week. We will update you as our roadmap becomes better defined.