We want to say a big thank-you to those who supported our case and wrote to their MPs about how Article 50 can be unilaterally revoked. On 20th December, Scotland’s Highest Court made a declaration giving effect to the judgment of the Court of Justice of the European Union. But it was not inclined to adjudicate upon the ‘how to revoke’ question (please see here for background information). This landmark litigation has now concluded. 

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This morning we received the judgment of the Court of Justice. You can read it here but in short we won. We can just cancel Brexit. Control over the nation's destiny rests where it should do - in the hands of our Parliamentarians. 

Last week JP Morgan wrote that the case had doubled the prospects of us Remaining in the EU. It is hard to overstate the importance of this case. I think it is no exaggeration to describe it as the most importance case in modern legal history. We took on the Government, the Commission and the Council (representing the interests of the other 27 member states) and we won. 

When the case returns to the Inner House of the Court of Session we will ask it to decide what needs to be done to withdraw the Article 50 notice. Our fight to maximise the power of Parliament against a crazed Executive continues.

We can't rest on our laurels and if you are able to offer further support we certainly do need it: https://www.crowdjustice.com/case/we-cant-rest-on-our-laurels/  

Jo Maugham QC
Director, Good Law Project

This morning the Advocate General ruled the United Kingdom can decide to cancel Brexit and remain in the EU. The decision is one the UK can make unilaterally – without needing the consent of the other Member States. His decision, which is likely to be followed by the Court, puts the decision about our future back into the hands of our own elected representatives – where it belongs.

I’m grateful to all of you for helping Good Law Project fund the case. And to our talented and dedicated legal team who worked for a fraction of their normal fee – Aidan O’Neill QC, Maya Lester QC, Piet Eeckhout, David Welsh and Balfour + Manson.

We had our hearing on Tuesday and it went, from our perspective, very well. We have published, here, all of the documents we are able to and a detailed note of the hearing. On Tuesday of next week we will get the (non binding but usually followed) decision of the Advocate General. 

In the meantime, the significant matter that emerged from the hearing was that the EU Institutions - both Council and Commission - formally agreed that it was possible for the UK to remain and the only debate was about the machinery. Brexit can still be stopped.

If you look here you can find a very simple way to emailing your MP to make sure she or he knows that the EU Council and Commission agree we can still cancel Brexit. It will take you less than 30 seconds. We strongly encourage you to use it. 

Thanks for your support,

Jo Maugham QC
Director, Good Law Project

Yesterday, the Court of Session in Scotland heard a last ditch attempt from the UK Government to stop the Court of Justice of the European Union deciding whether Parliament could cancel Article 50. They rejected the Government's arguments and the hearing before the Court of Justice will be going ahead. 

We have published our written arguments for the European Court on why the UK Parliament should have the power to cancel the Article 50 notice. You can read them here. The hearing will take place on 27th November.

You may have noticed that the Government published a ‘Response’ in the Article 50 case. As director Jolyon Maugham QC tweeted, it is extraordinary that it does not contend for a position - that we can unilaterally revoke the Article 50 notice - that protects the national interest if MPs vote to remain.  

We would like to say a huge thank-you to our supporters, and we will, of course, keep you updated.

Following our successful appeal, the Inner House of the Court of Session has referred to the Court of Justice of the European Union the question whether we can withdraw the terms of the Article 50 notice. You can read the terms of the reference here. And the Court of Justice has confirmed receipt.

Our director wrote in the Guardian about why the issue is critical. But in summary

• If we can revoke the notification without permission we will retain the rebate and opt outs we presently enjoy. It can be, legally, like the decision to Brexit was just a bad dream.
• It de-risks process. If we have to go cap in hand to the other 27 for permission we are at risk that a country that will benefit from transfers of financial services or manufacturing will block our path to Remain. Remaining should be a choice for the UK. We should have control.

We are expecting a decision before Christmas. We will provide dates for the hearing when we learn them.

We need the best legal team that money can buy – please help us here.

We have succeeded!

Scotland’s Highest Court earlier today agreed to refer to the Court of Justice the question whether the United Kingdom can remain in the EU on its present terms.

It rejected the Government’s argument that the question is hypothetical. “It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU.”

Whatever the outcome of the reference it is very likely we can decide to remain. Indications from the other 27 member states are that they would allow us to withdraw the notification. But the question is critical for two reasons.

First, if we can revoke the notification without permission we will retain the rebate and opt outs we presently enjoy. It can be, legally, like the decision to Brexit was just a bad dream.

Second, it de-risks process. If we have to go cap in hand to the other 27 for permission we are at risk that a country that will benefit from transfers of financial services or manufacturing will block our path to Remain. Remaining should be a choice for the UK. We should have control.

There are precedents for very speedy decisions and – my sources at the Court of Justice say – we should have its decision before Christmas.

We will need to raise further funds for the trip to Luxembourg. If you can contribute more, please do.

We have an exciting update about our Article 50 case.

Last month, the Court of Session refused to refer to the Court of Justice in Luxembourg the question whether the UK can unilaterally revoke its Article 50 notification. The Court said that the Government does not intend to withdraw the Article 50 notice, and the question over whether it can is hypothetical.

We think the Court of Session's decision is wrong, so we're very pleased to announce that we filed papers appealing the decision. We have also received great news that the Good Law Project has been granted a protective expenses order, meaning that the appeal can go ahead.

If necessary, we will appeal all the way to the Supreme Court.

The hearing in the Inner House of the Court of Session is scheduled for 15th August 2018.

I am sorry to say that, earlier this morning, the Court in Edinburgh decided not to ask the European Court if our Parliament could unilaterally withdraw the Article 50 notification.

Why did we want it to ask that question?

There were two reasons.

First, so that our Parliament – not those of other EU member states – controlled the UK’s destiny inside or outside Europe. That is what *unilateral* revocability delivers.

Second, because *unilateral* revocability means that, if we did decide to Remain, we would do so with the benefit of all of the special arrangements we presently enjoy.

What does the Court’s refusal to ask that question mean?

Parliament can still withdraw the Article 50 notification and Remain – so long as the other member states agree. As things stand they all say they will agree. But if they change their mind we will put the question before the European Court.

Why did we lose?

We lost because the Court said that, as things stand, the Government does not intend to withdraw the A50 notice and so the question whether it can is hypothetical (courts typically do not answer hypothetical questions).

Our argument was this. The Court ask ‘what might happen if our sovereign Parliament did choose to revoke?’ an action we know some MPs and Peers are contemplating.

If that happened, there could be a sustained period during which neither the EU nor the UK knew if the UK was inside or outside the EU. Such would engender chaos in the UK and the EU. The tests the law sets down must operate in the real world.

The Court of Session rejected that response. And my view as to whether it was right or wrong to do so is legally irrelevant.

What happens next? 

A constraint is that I have limited resources and have already given a personal indemnity against the Government’s costs. To appeal I will need an order limiting that liability but, if we get one, we are likely to appeal.

Is there a silver lining? 

The Court has made it crystal clear that the choice whether to withdraw the Article 50 notification and Remain is for Parliament not the Government. Parliament has control.

What has happened to the crowdfunded money? 

The sums we have raised will go, first, to pay the Government’s adverse costs and, second, if there is any left over to pay our own legal team.

Has that money been wasted? 

Litigation is an uncertain business and I’m not in the business of sugar coating the pill on occasions when (as is inevitable) I lose.

Inevitably some will use this defeat to attack me personally. My record to date can be seen here.

What is the status of the other Brexit litigation I am involved in? 

On 19 June the Court will hear Good Law Project’s challenge to the Electoral Commission’s handling of Vote Leave’s ‘donation’ to Darren Grimes. We have already forced it to reopen its investigation.

On 19 June (also) the Court of Appeal in Amsterdam will decide whether the Court below was right to refer to the European Court the question whether we get to keep our EU citizenship if Brexit happens.

Finally, I should say thank you to the solicitors and Counsel who worked so hard for very modest payment. And to the other Petitioners for supporting this attempt to strengthen Parliament.

Please sign up to the Good Law Project’s emails or become a member here.

Later this month – on the 22^nd of May – we will have a hearing before the Court of Session in Edinburgh. It will decide whether to ask the Court of Justice in Luxembourg if we can withdraw our Article 50 notice – if Parliament decides Brexit is not in the national interest.

I am one of the petitioners – along with a handful of Scottish Members of the Parliaments of the UK, Scotland and Europe. Two English MPs are also intervening in support of the case. And a Welsh MP and a member of the Welsh Assembly are also supporting the case. They all want to know for sure that we can choose to remain.

As things stand, the other 27 member states of the EU say they would allow us to withdraw our notice if we wanted to. That they would permit us to. And this gives us real comfort that such a thing is possible. However, the case is about whether we can remain just because we choose to. And it is vitally important for three reasons.

First, Guy Verhofstadt has said that remaining now would mean the UK losing its valuable opt-outs and rebate. Of course, he does not speak for all of Europe. And (as far as I am aware) his language has not been repeated by other leaders. But we mustn’t lose the good deal we presently enjoy. If we can pull our notice unilaterally – just because we want to and without needing their permission – the consequence should be that we keep the same good deal. They would have no leverage to charge a price for us remaining.

Second, without a right unilaterally to withdraw the notice, any one Member State could block us remaining. Already, Brexit is causing an exodus of jobs in the finance and space sectors to the EU. And many more are likely to follow over time if we continue to allow the EU to tighten the screws on our economy. And the Japanese have given a very clear indication that car makers will move to Europe if we can’t get frictionless trade with the EU. And – remember David Cameron when he tried to ‘roll out the red carpet’ for high earners in France? – poor policy in one country creates winners in others.

So, how confident can we be that all 27 member states would allow us back? Can we be sure they would sacrifice their own interests to do so? Best we not rely on that hope.

Finally, third, this case is a chance to put debates about remaining back on the front pages of the newspapers. Although it cannot cause us to remain – that is rightly a matter for elected politicians and not judges – it will ensure we all know, particularly those who have changed their minds about the wisdom of Brexit, that remaining is possible.

But we need money to fund the case. I have provided a personal indemnity to the other Scottish petitioners – without it many or all would not be able to participate – but I do not know how long I can keep it open.

We have decided to proceed with the appeal.

Of the seven original Petitioners, five have agreed that we should appeal. Joanna Cherry QC and Christine Jardine are withdrawing. And I am being added as a Petitioner/Appellant.

Because we are asking you to fund a case which a Judge has declared lacks any reasonable prospect of succeeding we are taking the step of publishing a note prepared by Aidan O’Neill QC and Peter Sellar to advise the Petitioners.

That Note sets out from a technical, legal perspective why the Decision of the Judge below was flawed. You can – indeed, before you fund this case you should – read that Note.

Establishing that, alongside the political route to revocability there is a legal route, is vital in the national interest. If Parliament chooses not to withdraw the Article 50 notice then no harm is done by asking now the question whether it has that right. But if Parliament does come to want to withdraw the notice, knowing it has the right to do so serves the national interest

It improves the bargaining position of the UK, it ensures we retain the opt-outs and rebates that we presently enjoy, and it places the decision entirely in the hands of the UK’s Parliament and – if it chooses – its people.

Jo Maugham QC, Director

We heard this morning that Lord Doherty, sitting in the Court of Session, had refused permission to the seven Scottish MEPs, MSPs and MPs attempt to understand what options might be available to the UK Parliament. You can read his decision here.

His decision was not a surprise.

Different Judges have different approaches to disputes involving the Government. That is regrettable from the point of view of legal certainty but it is also inevitable. And Lord Doherty is perceived as conservative (in a non-party political sense). The hearing and judgment bore out that perception.

I remain very firmly of the view both that (1) it is in the national interest that our sovereign UK Parliament knows what options it has and (2) Lord Doherty’s assessment of the question as “academic” is wrong.

It is impossible sensibly to pretend that many in Parliament are not contemplating a revocation of the Article 50 notice. The only amendment to the Repeal Bill that passed in the Commons opened the door to exactly that possibility. Don’t accept my characterisation: it’s exactly how (for example) Sir Oliver Letwin (speaking against the amendment) put it. As did others.

It is also impossible sensibly to pretend that the question can be asked later. In the Shindler case – which concerned the rights of UK citizens long term resident in Europe to vote in the Referendum – the Claimants were denied a reference to the European Court because they had waited too long to ask for one. The fact that the answer would come from the European Court after the Referendum vote was said to have the consequence that the answer was “academic”. If we are to avoid that judgment again, we need to ask the question now.

Finally, it is impossible sensibly to pretend that it is not in the national interest for the question to be asked. If Parliament chooses not to withdraw the notice then no harm is done by asking now the question whether it can. But if Parliament does choose to withdraw the notice then knowing that revocation can be made unilaterally improves our bargaining position vis-à-vis the other 27 member states and provides it with legal certainty. Brexit is profoundly important and no one can wish us not to know what the 'rules' are. 

The advice of our legal team is that we should appeal. We have the right to appeal to the Inner House of the Court of Session. If they refuse permission the advice I have received is that we can – and we presently believe we should – ask the Supreme Court for permission.

We are crowdfunding for a further £50,000 (plus CrowdJustice’s costs). That money will enable both of these further limbs of appeal to be pursued and is raised for the purposes of protecting the Petitioners against adverse costs. No money will be taken from your accounts until a final decision has been whether to appeal. It is right to say that these will be appeals against a refusal of permission rather than against a refusal to refer the question of irrevocability to the European Court. However, it is possible or likely that as one rises through the appellate courts what is formally a permission question will roll up into a substantive question about whether to make the reference.

I am very grateful for your continued support. If you are able to, please do fund.

Jo Maugham QC, Director and Founder (Good Law Project)

There is no doubt there is a political route to revocability: if the other 27 agree, we can remain. But to improve the bargaining position of the UK, to ensure we retain the opt-outs and rebates that we presently enjoy, and to place the decision entirely in the hands of the UK’s Parliament and – if it chooses – its people we must seek to establish a legal route to revocability. We must seek to secure a right for Parliament to withdraw the Article 50 notice – if it chooses.

The permission decision of the Court of Session will be handed down on Tuesday at 9.30am. I was warned before the hearing – once the judge was known – that we were likely to have a bumpy ride and so it proved. But we have a right to appeal to the Inner House and, should we need it, the Supreme Court.

I believe we are right and the question should be referred. There are a number of reasons why I say this. But the main argument is this.

You cannot sensibly pretend that Parliament is not considering whether to revoke the Article 50 notice. The only amendment to the Repeal Bill that passed in the Commons opened the door to exactly that possibility. But don’t accept my characterisation: it’s exactly how (for example) Sir Oliver Letwin (speaking against it) put it. So did others.

In those circumstances it is vital that the UK Parliament knows whether it possesses that power. Indeed, it is vital that the EU27 knows whether Parliament possesses that power. And both need to know before the question whether to exercise it arises. If Parliament doesn’t know then – should Parliament come to exercise the power – there will be chaos for the UK and the r27. There will be a period of many months in which we and they may not know whether the UK is inside or outside the EU. So it is not practical and it is not sensible to wait and see. When decisions of this magnitude are being contemplated the rules must be known in advance.

And there is no good argument to the contrary. None at all.

Stripped of legal niceties, all the Government can say is, ‘we do not plan to revoke’. But (see that Oliver Letwin quote again) it is not for Government to decide. It is for Parliament to decide. (And, of course, both Governments and their positions can change.)

That is why I think it is important that we know the answer. And if, as I expect, Lord Doherty in the Court of Session disagrees and refuses to refer the matter to the CJEU it will be my advice to the seven petitioners that we should appeal to the Inner House of the Court of Session and, if necessary, the Supreme Court. (We have a right to appeal to the Inner House; we would need permission for a further appeal to the Supreme Court).

To do this we will need further funds.

As matters stand (in this case as in many others that I and the Good Law Project am and have been involved with) I am personally indemnifying the petitioners against the risk of costs falling upon them. I have no money other than what I have earned in a relatively short career at the Bar. That is a difficult financial burden to sustain in one piece of litigation; it is impossible across many.

So, if we lose on Tuesday, I will launch a further fundraising on Crowdjustice to protect us against adverse costs. You will have the opportunity to decide.

In the meantime, you can see our claim here.

You can see the Government’s answers here.

You can see the affidavit of Joanna Cherry QC here.

And you can see the affidavit of Andy Wightman here.

And you can see the speaking note of Aidan O’Neill here, here and here.

Jo Maugham QC