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11 October 2016

The Article 50 People’s Challenge: a pre-hearing brief

11 mins

On 13th, 17th and the morning of 18th October 2016, the Divisional Court will hear the judicial review challenge to the Government’s plans to trigger Article 50 to take the UK out of the EU. The target of the challenge is the way the Government plans to do this – by using the Royal Prerogative instead of seeking prior authorisation from Parliament.

Thanks to over 4000 people supporting the People’s Challenge via CrowdJustice, the ‘interested parties’ represented at that hearing will include a range of ordinary British Citizens who have instructed Bindmans and a team of barristers – QCs Helen Mountfield and Gerry Facenna, plus Tim Johnston and Jack Williams – to submit that prerogative powers cannot be used in this way because that would mean millions of British Citizens being stripped of rights that Parliament has granted. The People’s Challenge argues that, if these rights are to be taken away, it must be Parliament that takes that step. Their arguments complement those being put by the claimants who began the Article 50 litigation, Gina Miller and Dier Dos Santos.

The detailed brief below has been prepared by the People’s Challenge’s legal team. It answers many of the questions members of the public and journalists have put to us, summarises what the Government says in response to our arguments, explains how those arguments will be presented at the hearing and sets out what else is likely to happen, including after the hearing.

Who is the People’s Challenge group?

The group are all campaigners who have raised money through a crowdfunding website, CrowdJustice, to participate in this case as ‘interested parties’. They are Grahame Pigney and his son Rob, who moved to France years ago, Paul Cartwright, a Gibraltarian national who runs Brex-IN, Christopher Formaggia, who lives in Wales, Tahmid Chowdhury, a London student and Fergal McFerran, NUS-USI President who lives in Belfast.

What is a judicial review and why is one needed here?

Judicial review is the special legal process enabling the courts to make sure state power is being used lawfully.

This particular case has come about because of a fundamental disagreement between the Government and many members of the public – and some of their MPs – about Parliament’s constitutional role following the EU Referendum result. In an emergency debate on 10 October 2016 the Government resisted MPs’ calls for more Parliamentary involvement and said the matter was in the hands of the Divisional Court.

What is the Divisional Court?

A Divisional Court is constituted from a small group of High Court judges. Normally judicial review cases are heard by a single judge, but on this occasion three very senior judges will hear the case because of its importance. They will be led by the Lord Chief Justice, The Right Honourable The Lord Thomas.

Will the hearing be public and can people come along?

Yes. It will be a public hearing starting at 9.30 AM and running until about 4.15 PM each day with a break for lunch around 1.00 PM. It is likely to be held in Court 1 at the Royal Courts of Justice on the Strand. The hearing is likely to finish on the morning of 18th October 2016.

Will there be a live video feed?

No. There is a public seating area in the Court. Possibly video screens will be out up outside in the Royal Courts of Justice corridor or hall, but not externally broadcast.

The People’s Challenge group will tweet updates during the hearing and produce a summary of what’s happened at the end of each day, though.

Will the Court hear live evidence from individuals?

No, just legal argument from barristers. Evidence has been submitted by the claimants – Ms Miller and Mr Dos Santos –  and by some of the interested parties – including all members of the People’s Challenge group – about their reasons for being involved and concerns about the Government’s intentions. The Government has disputed very little of what has been said, but this is a case that turns on a legal question, not a dispute about facts.

The claimants’ barristers – Lord Pannick QC and Dominic Chambers QC – will be heard first, probably for most of the 13th. There are two sets of interested parties (groups of people that the Court has already accepted are directly affected and so entitled to be heard). Their barristers – including the People’s Challenge QC, Helen Mountfield – will likely be heard next, followed by the barristers acting for an expats’ group.

The Government will then reply, probably splitting its case over most of 17th October. Their case will be argued by the Attorney General, Jeremy Wright QC, though other barristers acting for the Government may also make submissions.

The Court will then hear replies from the claimants’ barristers, and possibly others’, on the 18th.

All barristers’ time in Court will be short, especially those instructed by the interested parties and interveners. But besides what is said at the hearing the judges will be considering the parties detailed written submissions and around 10 double-sided volumes of material, including statute law (Acts of Parliament), cases that set a legal precedent, parliamentary and other materials.

Will the Court decide the case after the end of the hearing?

Yes. It is very likely to ‘reserve’ its judgment, think about and discuss the legal issues and then announce what it has decided at a short hearing in a matter of weeks. The announced decision will be underpinned by a detailed judgment.

Will that be the end of the case?

Almost certainly not. Whoever wins, the UK’s Supreme Court is likely to hear a ‘leapfrog appeal’ (one that bypasses the Court of Appeal) in a few weeks, probably in early December. If so, it will make the final decision.

Will the People’s Challenge be involved at the Supreme Court stage, if the case is argued there?

There will need to be further crowdfunding, but subject to the case proceeding before the Supreme Court, yes. It is very important that the Supreme Court hears why stripping away British Citizen’s rights without Parliamentary authority is unlawful.

What about the argument that Parliament, then the public, authorised Brexit through the EU Referendum Act 2015 and the public vote?

The Government has much to say about the EU Referendum in its defence, but in the end this is not the cornerstone of its case. The outcome of the EU Referendum is very important and certainly demands respect. The People’s Challenge group’s position is that,  like most referendums in the UK, it was ‘advisory’. The 2015 EU Referendum Act did not say what should happen next, nor who should decide that. In fact, Parliamentarians were briefed during the EU Referendum Bill debate that the Bill contained no:

requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented


this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.

The Government’s policy is clear enough. But that cannot override parliamentary sovereignty.

The 2015 briefing echoed what Parliament was told when the very similar EEC Referendum Bill was debated in March 1975:

Parliament… can never divest itself of its sovereignty. The referendum itself cannot be held without parliamentary approval of the necessary legislation. Nor, if the decision is to come out of the Community, could that decision be made effective without further legislation.

What are the main legal issues then?

This is absolutely not a case about ‘stopping Brexit’, challenging the outcome of the EU Referendum or the way the campaigns were run.

Instead, it concerns fundamental constitutional questions: after the EU Referendum, who is legally entitled to decide when, how, whether and if so on what terms the UK will leave the EU?

The Government says these are decisions for it alone and it can trigger Article 50 to give effect to its decisions using the Royal Prerogative – vestigial powers derived from the rights and privileges of the Crown. It says it needs no Parliamentary authority to do so. And in yesterday’s debate it went further, arguing parliamentary oversight would be undesirable ‘micromanagement’.

Like the claimants, the People’s Challenge group’s lawyers will argue that an Act of Parliament is absolutely necessary in law before Article 50 TEU can be triggered.

They will develop this by submitting to the Court, amongst other arguments, that any use of executive prerogative power to trigger Article 50: (1) would be inconsistent with a number of the UK’s ‘constitutional statutes’ (such as the Bill of Rights, 1689, the devolution statutes and the European Communities Act 1972); (2) would be an unlawful removal of British Citizens’ fundamental citizenship rights; and (3) would, in any event, be abusive if it were exercised to trigger the UK’s withdrawal from the EU because it would amount to the executive de-facto legislating and thus impinging upon the principles of Parliamentary Sovereignty and the Separation of Powers.

The Government’s counter argument is that: (1) entering into and withdrawing from treaties is a matter for the executive under the prerogative;, and (2) there is nothing special about either our relationship with the EU, or the rights British Citizens have as a result of the UK’s EU membership, which would prevent the Government from deciding to trigger Article 50 without Parliamentary authority.

Last, the Government argues that the dispute is not suitable for consideration by a court, because the matter is a “polycentric” one of “highest policy” which is only suitable for the claimed “expertise of Ministers” to determine. This argument has been subject to staunch criticism, being described by one constitutional academic expert as “absurd” and “quite bewildering”.

For more on the legal issues, see the skeleton arguments from the Government and the People’s Challenge along with its clarification note.

Won’t Parliament have an opportunity to oversee and control the Brexit process when it considers the ‘Great Repeal Bill’?

No. On the Government’s case, Parliament’s main role in relation to Brexit will be enacting tidying up legislation to remove the European Communities Act 1972 (the Act that brought EU law into direct force in the UK) and affirming the result of any future negotiations. This is what has been referred to as the ‘Great Repeal Bill’.

Of course, by then, Brexit will be well underway because invoking Article 50 starts a two year clock ticking and, absent all member states agreeing to more time, once the two years are up, EU membership will automatically be ended. That will happen regardless of individuals’ personal circumstances. So, for example, a student part way through a course in another EU country, would lose the right to complete it unless some concession had been negotiated and, similarly, someone who had retired in another EU country relaying on EU rights would need to seek permission to remain there.

The details of the Great Repeal Bill are unclear, but on the face of things this is irrelevant to the current dispute. Such a Bill will not be proposed and enacted until long after Article 50 is triggered, and will not come into force until the date on which the UK leaves the EU. In any event, the proposal of such a Bill exemplifies the legal argument made on your behalf – if Parliament were to refuse to enact Ms May’s Bill, then, on account of mere Ministerial action triggering Article 50, the UK would nevertheless still be on an unstoppable course for withdrawal from the EU due to the effects of Article 50 (which is arguably impossible to reverse without the unanimous consent of 27 other EU Member States). This would be inconsistent with a wide-range of statutes which depend upon and assume EU membership. It would mean that the citizenship and fundamental rights which flow from EU membership, and were brought into force in UK law via Acts of Parliament, would be lost, despite Parliament never agreeing to that.

In reality, once Article 50 is triggered, Parliament will have very little meaningful role.

What happens if the challenge ultimately succeeds?

Judicial review will be ‘granted’ by the Court and it will make a declaration that there must be an Act of Parliament before the UK leaves the EU, authorising that step. That Act would need to be based on clear proposals, and debated and modified as needed, like all primary legislation.

If the challenge fails, can the Supreme Court’s decision be appealed to the Court of Justice of the European Union?

No. This is a case about the UK’s own constitutional requirements. The only real possibility of the Court of Justice becoming involved would be if the UK Courts concluded that they required a definitive ruling on the question of whether an Article 50 notification can be withdrawn.

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