Just received this
Update on Article 50 Challenge
The Court of Appeal has at last determined our appeal against the refusal of the Divisional Court back in June to grant us permission to apply for Judicial Review. Sadly, but not unexpectedly, we have been refused permission to appeal. This decision is final and there are no avenues left open to us to contest the matter any further through the Courts. The Appeal Court’s decision therefore concludes our Article 50 Challenge, and we are closing our Crowd Justice Account.
However, do remember there is still hope of our argument reaching the Court of Appeal with UK EU Challenge.
It is worth reflecting on what Article 50 Challenge has achieved, and what it could enable in the future should sanity return and a Brexit Public Inquiry be brought.
Our hearing on 12 June 2018 conclusively established some important points:
It confirmed that an actual substantive decision to leave the EU was in fact required before the Prime Minister was able to notify under Article 50;
It identified who made that decision – and that person was the Prime Minister herself acting alone on the exclusive basis of the referendum of 2016.
Lord Justice Gross took the very unusual step of making the permission hearing judgment citable, thereby ensuring UK EU Challenge could be brought.
Bizarrely, in the 14 months running up to our hearing, the Government had contended – right up to the closing minutes – that they only needed to notify under Article 50 and did not need to have decided to leave the EU at all in order to begin the process of withdrawal.
This was Alice in Wonderland logic. It reminded us of 1980s Film ‘Withnail and I’ where one of the characters said, “We’ve gone on holiday by mistake”. This was pure chicanery.
And we suspect that it was done to avoid accountability for the decision. Crudely put:
If Parliament was responsible for the decision, it would have to “squarely confront what it was doing” and use explicit language in a statute. When we say this it is “instinctively” right, but is also supported by settled law. You can see why if you read Secretary of State for the Home Department, Ex parte Simms [1999] Q.B. 349;
Alternatively:
If the decision was an administrative act of a minister (ultimately a Prime Minister is merely a minister), then there are things that must be done for that to be lawful. Its integrity is subject to Judicial Review in the same way that, say HS2 is, or Heathrow expansion, or, even commissioning an unheard-of ferry company with no craft, capital or experience and Ts & Cs lifted from Papa John’s website to run a sea freight business in a silted up port...
But if you pretend that neither pathway is available for review by the people your actions will impact upon, you totally circumvent accountability.
And – together – we exposed the fact that responsibility is squarely on Theresa May; we have proven that Parliament has not only been tricked but also subverted and frozen out.
The importance of this has already been shown in two ways, and may come to have significance in a third:
Proving the decision was made by Mrs May, means that the golden thread of accountability between the people and those who are making decisions about them is properly on show. Indeed, Article 50 Challenge is now an official record in the House of Commons Library researchbriefings.files.parliament.uk/documents/CBP-8415/CBP-8415.pdf?fbclid=IwAR2IbOXJHF5aOj-HNxKARkXknLwfw1v4f5EyVcZcvj8-tFLUvo1XGL3vrVg.
Doing this was an important plank of what our friends in @UKEUChallenge were using when they brought their case, which had a hearing.
The seemingly inevitable Brexit Public Inquiry already has available to it established and significant facts on which to build.
It was nonsense to say that no decision was needed for the UK to leave the EU, and we are proud to have exposed this with your help. In reality, we are of the firm view that there still hasn’t been a valid constitutional decision to leave the EU. The Withdrawal Agreement was overwhelmingly rejected by the largest majority ever in Parliament last week.
We want to thank you for your support. We believe our case has helped people to navigate through, and provided encouragement at a time when many have felt the UK’s democracy and values are in grave danger.
Work will now begin on a thorough and careful review of our costs and we will ensure that any surpluses go to allied causes.
We will continue to keep you updated with developments in due course.
With kind regards
All at the Article 50 Challenge Team