It’s 100 Days Since the EU referendum; As a Legal Challenge Secures a Victory, It’s Clear the Tories Don’t Know What They’re Doing

Yesterday it was 100 days since a slim majority of the British people who could be bothered to vote in the EU referendum decided that they wanted us to leave the EU after 43 years’ membership, a generally ill-considered decision that I wrote about at length at the time — see my articles UK Votes to Leave the EU: A Triumph of Racism and Massively Counter-Productive Political Vandalism, Life in the UK After the EU Referendum: Waking Up Repeatedly at a Funeral That Never Ends, Not Giving Up: Photos from the March for Europe in London, Saturday July 2, 2016 and As the Leaderless UK Begins Sinking, MPs, Media and British Citizens Don’t Seem to Care.

As the Tories’ annual conference gets underway, Brexit hangs over it like a black cloud, however much our unelected Prime Minister Theresa May wishes that were not the case. The beneficiary of the collapse of David Cameron’s government after the referendum — and the discrediting of the Tories’ main cheerleaders for the Leave campaign, Boris Johnson and Michael Gove — May has done very little since coming to power, beyond expressing a largely unpopular desire to fill the nation with grammar schools.

On Brexit, as a generally unenthusiastic member of the Remain camp, she has tried to wash her hands of the referendum’s toxicity, appointing three stooges to preside over our departure from the EU — Boris Johnson brought back, embarrassingly, as foreign secretary, plus David Davis, allegedly in charge of negotiating our departure from the EU, and the crook Liam Fox, who resigned because of inappropriate behavior in 2011, when he was the defence secretary, after breaking the ministerial code by repeating allowing his friend Adam Werrity, a lobbyist, into meetings with military figures, diplomats and defence contractors. For more on the failures of Boris Johnson, David Davis and, particularly, Liam Fox, see this withering criticism by the Tories’ former business minister Anna Soubry.

Theresa May is now pledging to trigger Article 50, which formally announces our departure from the EU, next March. However, as the Observer states today, explaining why no progress is possible before next year, “several cases are currently before the courts arguing that the government does not have the power to invoke article 50 without parliament’s approval. The issue is likely to move swiftly to the supreme court, which will be under pressure to deliver a final judgment by Christmas.”

Legal challenges began in the wake of the EU referendum, beginning with a letter to the Prime Minister in early July, signed by 1,054 lawyers, who, after pointing that the outcome of the referendum was merely advisory, added, “The European Referendum Act does not make it legally binding. We believe that in order to trigger Article 50, there must first be primary legislation. It is of the utmost importance that the legislative process is informed by an objective understanding as to the benefits, costs and risks of triggering Article 50.”

Also relevant, following the referendum result, was the position taken by Geoffrey Robertson QC, who made clear where MPs’ responsibility lies. He pointed out that “‘[s]overeignty’ — a much misunderstood word in the campaign — resides in Britain with the ‘Queen in parliament’, that is with MPs alone who can make or break laws and peers who can block them. Before Brexit can be triggered, parliament must repeal the 1972 European Communities Act by which it voted to take us into the European Union — and MPs have every right, and indeed a duty if they think it best for Britain, to vote to stay.”

In my articles immediately after the referendum, I also made reference to an article by law professor and former Foreign Office advisor Philip Allott, who stated that the Brexit decision may be “unlawful,” and discussed another article explaining how solicitors from a number of law firms were “taking pre-emptive legal action against the government, following the EU referendum result, to try to ensure article 50 is not triggered without an act of parliament.”

A hearing, presided over by high court judge Mr. Justice Cranston, took place on July 19 (see legal Cheek’s commentary here), and the case is proceeding later this month. Last week it was back in the news again, as highlighted in the Guardian in an article by Owen Bowcott entitled, “UK government must disclose legal arguments on article 50 procedure.”

As the Guardian described it, Mr. Justice Cranston has obliged the government “to reveal secret legal arguments for refusing to let parliament decide when and how the UK should withdraw from the European Union,” whereby he has “swept aside restrictions on publishing official documents before the hearing on 13 October.”

In those documents, available here, lawyers for the government argue, as the Guardian put it, that “it is ‘constitutionally impermissible’ for parliament to be given the authority rather than the prime minister and dismiss any notion that the devolved nations – Scotland, Northern Ireland and Wales – will have any say in the process.”

After adding that the decision to trigger Article 50 “is a matter of high, if not the highest policy,” they explain that it is “a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of ministers and their officials are particularly well-suited and the courts ill-suited.”

The government’s submission also claims that “[t]he lawfulness of the use of [royal] prerogative is not impacted by the devolution legislation. The conduct of foreign affairs is a reserved matter such that the devolved legislatures do not have competence over it.”

The government had previously “refused to allow its legal opponents to reveal,” before the case is heard, “its explanation of why it ought to be able to use royal prerogative powers to trigger article 50,” but in an order issued by Cranston last Tuesday, September 27, he told both parties, “Against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under [court] rules.”

As the Guardian proceeded to explain, “Cranston’s decision has also allowed the People’s Challenge, a crowdfunded group, to publish its full claim without any sections of it being redacted or withheld,” which argues that “only parliament can lawfully ‘decide’ to leave the EU for the purposes of article 50 [of the treaty]; and that the [government] may only ‘notify’ such a decision to the European council under article 50 once [it] has been properly authorised to do so by an act of parliament”.

After the outlines of both sides’ arguments were released, John Halford of Bindmans, which represents the People’s Challenge, said that the court’s order “allows a floodlight to be shone on the government’s secret reasons for believing it alone can bring about Brexit without any meaningful parliamentary scrutiny.”

He added, “Those who were unsettled by the government’s insistence on its defence being kept secret will now be surprised by the contents, including submissions that Brexit has nothing constitutionally to do with the Scottish and Northern Ireland devolved governments, that parliament ‘clearly understood’ it was surrendering any role it might have in Brexit by passing the EU Referendum Act, that it has no control over making and withdrawal from treaties and that individuals can have fundamental rights conferred by acts of parliament stripped away if and when the executive withdraws from the treaties on which they are based. These arguments will be tested in court next month, but now they can be debated by the public too.”

FT also covered the story in an article entitled, “Lawyers gear up to sue government over Brexit process,” which highlighted the lead claimant, Gina Miller, represented by the law firm Mishcon de Reya, who is “[t]he co-founder of an investment management company,” and “has been a vocal campaigner against hidden fees in the industry.” Other claimants include a Spanish hairdresser and expatriates living in France.

The FT also noted that the case “is being watched by constitutional experts aware that, unusually, the UK has a wholly uncodified constitution built up over many centuries, which compounds the complexities of triggering Article 50.”

Speaking to the newspaper from “her elegant Chelsea offices,” Gina Miller “said she had received online abuse for heading the challenge but was undaunted.” As she put it, “Someone sent me quite a nasty email saying, this is just frustrating Brexit by the back door. If anyone knows anything about me, I don’t do anything by the back door … I’m full on, straight up … and if I see something that I think is an injustice I will speak up about it. Our case is very, very simple … it’s about the process. How do we create legal certainty? Unfortunately, Article 50 is not well written, there is no process in it and everyone says it raises more questions than it answers. If we start the process illegally what will that do to the process?”

She added that the legal challenge is about “process not politics.”

After the referendum, Miller, whose father is a former attorney-general of Guyana, said that, reflecting on the result, “the word that kept resounding in my mind was the idea of sovereignty.” She told the FT of her belief that if Article 50 is not triggered with the proper care, “it unleashes a huge amount of legal uncertainty which could go on for years and could, in the worst-case scenario, mean that we forfeit our right to negotiate because they will say: you haven’t triggered it properly”.

She also warned against “a legal landscape where royal prerogative can overrule parliament and take away or diminish rights.”

Miller’s case will be joined by three others on October 13, against a government team led by Jeremy Wright QC, the Attorney General. One, as the FT explained, “has been brought by Spanish hairdresser Deir Dos Santos, who is represented by law firm Edwin Coe,” and Bindmans’ crowdfunded case is “on behalf of Grahame Pigney, a British citizen living in France whose fellow claimants include Paul Cartwright, 50, who is a Gibraltarian national, Christopher Formaggia, 49, who lives in Wales, and Tahmid Chowdhury, 21, a London student.”

The FT’s article continued:

Mr Pigney, 62, is semi-retired and has lived in a wine-growing region near Carcassonne in France for 19 years. When he moved there he says he appreciated at first hand the “openness and ease” of free movement that EU citizens enjoy, as he lived in France but commuted to work in London during the week.

He was one of the long-term expats who was unable to vote in the referendum on June 23 but says the result came as an “enormous shock”.

He said his court case is not about overturning the result but he believes the enforced removal of citizenship rights — of the EU — from the 65m people who live in the UK is unprecedented in a modern democracy and must involve a proper parliamentary process.

“It is for parliament to decide when, how and under what circumstances [citizenship rights] are taken away,” he said.

The FT also noted that, last week, the House of Lords Constitution Committee “concluded it would be ‘constitutionally inappropriate’ for the government to trigger Article 50 without consulting parliament,” but added that “many lawyers believe the legal challenge is unlikely to succeed because courts are reluctant to intervene in the exercise of power in foreign affairs, including treaties.”

The lawyers, the newspaper continued, “point to a doomed 1971 legal case against the government brought by Raymond Blackburn, who argued that Britain’s entry to the European Common Market would be unlawful because it involved surrender of the sovereignty of the Queen in parliament. In that case, Lord Denning, the lead judge, concluded, ‘The treaty-making power of this country rests not in the courts but in the crown; that is, Her Majesty acting upon the advice of her ministers.’”

I can only hope the lawyers are wrong, because nothing emanating from the government assures me that ministers have a clue how to secure our departure from the EU without it causing profound damage to our economy and our relationships with other countries in Europe.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.