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09 September 2016

The real reasons for Theresa May’s criticism of the Article 50 People’s challenge

7 mins

Responding to Bernard Jenkin MP during  Prime Minister’s Questions on 7 September, Mrs May told the House that the Government had a “clear”  position on invoking Article 50, adding that “this is a prerogative power and one that can be exercised by the Government”.  The following thinly-veiled criticism was then levelled at those involved in the crowd-funded People’s Challenge and the other litigation of which it forms a part:

No one should be in any doubt that those who are trying to prolong the process by their legal references in relation to Parliament are not those who want to see us successfully leave the European Union; they are those who want to try to stop us leaving.

Such statements make good soundbites. But the Government’s superficially unequivocal and plain-speaking position needs a little unpacking. Once that is done, what becomes clear is that it is neither straightforward nor correct. Exposing this is one of the reasons why the People’s Challenge is so important.

The first point to be made about the Prime Minister’s answer is that it infers that ministers have a constitutional tool box, with a special compartment for the Prerogative, neatly labelled “For use in the event of Brexit”. 

Ironically, the proponent of the EU Referendum, David Cameron, strongly advocated for restrictions on use of the Prerogative on the premise that “restoring trust in politics means restoring trust in Parliament”.  So far, no-one in Government has unearthed any statement from Mr Cameron suggesting that the Brexit process was an exceptional matter which Parliament could not be trusted to oversee.

And his successor is quite wrong constitutionally. The Prerogative is a legal tool for the exercise of the vestigial powers of the monarch by the government of the day. It can only be used legally when Parliament has not already decided it is too blunt for use by a single minister in a particular context, which is in fact what has happened repeatedly over the last four decades in relation to the UK’s EU membership. That has led not only to internationally-binding treaties with other states, but to Parliament granting of enhanced citizenship rights to millions of British Citizens living here in the UK and abroad. These rights are not only written into the UK statute book; they are woven into the constitutional settlement within the UK, particularly with the people of Northern Ireland and Scotland and with those living in the UK’s territories overseas. 

These compelling arguments cannot be brushed aside. They will be put to the court by the People’s Challenge legal team – QCs Helen Mountfield and Gerry Facenna, barristers Tim Johnson and Jack Williams, and their solicitor, myself.

How will that be done?

In short, the People’s Challenge group are now fully recognised, and on the court record, as ‘interested parties’ in the test case litigation brought by Deir Dos Santos and Gina Miller in July (the cases were taken separately but have been joined together by the court).  They too challenge the government’s plan to exit the EU by invoking Article 50 without Parliamentary authorisation in the form of an Act of Parliament.  The People’s Challenge have filed an ‘Acknowledgement of Service’ at court outlining our grounds for arguing that the Government is wrong on the basis of separate, but complementary arguments.

Right now, those arguments are being developed in a detailed written ‘skeleton argument’ which we will publish so that anyone interested can see, comment on and discuss it. Evidence from those in the People’s Challenge group will also be filed at court. Then, if sufficient funds are raised towards the CrowdJustice ‘stretch target’, the legal team will present the arguments at the hearing in October.

The Prime Minister suggests that all of this is being done simply to “prolong the process”  of Brexit.  This is too is wrong at a number of levels.

First, at the preliminary hearing of the litigation in July Mrs May’s barrister confirmed that she will not be invoking Article 50 this year. Everyone involved in the litigation agreed that it needs to be dealt with speedily so the Prime Minster will have the guidance of not only a special ‘Divisional Court’ of the High Court but also the Supreme Court, if necessary, before 1 January 2017.  Diaries have been cleared and an expedited timetable has been set.  None of this is consistent with anyone “trying to prolong” the process.  If stalling had been the intention, legal action would have been better targeted at the invocation of Article 50 itself, not the plan to use it.  

More importantly still, the remedy being sought from the courts cannot ‘block’ Brexit. All that is sought from the courts is a declaration which confirms that decision-making on Brexit falls to our democratically-elected Parliament. The value of such confirmation would be immeasurable because it would then be for Parliament to decide what becomes of individuals’ rights under a Brexit process, what Brexit means or – if Parliament sees fit – if there may be an alternative.  None of this would be lawyer-driven, and it certainly should not be. But it would be democratic.  

The last thing that calls for a response is the Prime Minister’s opening salvo – that the Government’s position is “clear”. 

Again, this is not really so. The British public – whether permitted to vote in the EU Referendum, or disenfranchised through age or long residence abroad – were never told that there would be no Parliamentary oversight of the stripping away of their individual rights following Brexit, neither before the Referendum result was announced. Had they been, many may have decided not to vote leave, especially had they known there was no Government contingency planning for the Brexit process.  Then, shortly after the Referendum result was published, Parliamentary involvement was promised. But now there is not even to be a Parliamentary vote, never mind proper legislative scrutiny. Startlingly, whether there should be one or not is said to be a matter for the Prime Minister to decide. And so far, the Government’s legal defence – set out in letters and its ‘Detailed Grounds of Resistance’ – has been made available only to the parties to the litigation; hardly a transparent, public position.

All of this begs two questions Mrs May has yet to answer, both of which are rather trickier than that put by Mr Jenkin.

First, if the Government really is confident in its position on the law, why is it busy criticising those who have brought the issue to court when doing so will speedily put the lawfulness of its actions beyond doubt?

Second, and even importantly, if the Government really is confident that its plans for Brexit are sound, particularly in their protection of British Citizen’s rights, why is it so anxious to avoid Parliamentary scrutiny?

In truth, the point of the People’s Challenge is to bring about the legal certainty, and in turn the Parliamentary scrutiny, that something as serious as the stripping away of citizenship rights from 65 million people so obviously demands. The case is as serious as they come. The criticism and attempts to trivialise it are unworthy.

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