Consistently with my promise that this Crowd Justice funded litigation on Article 50 should be conducted transparently, I post here the (rather disappointing) response received today from the Government.

The initial hearing is at 10.00 am tomorrow.

Here is the letter:

And here is the accompanying ‘Defendant’s Note’:

Dear Friend,

What you feared of Brexit? It looks likely to come true.

Already the signs are there. Of slowing investment, falling employment, increases in inflation, slumping public finances, a falling housing market (hurting house-building), a likely break up of the United Kingdom, diminished tertiary and research sectors, and a rise in racism. Government’s response to date has been to signal tax cuts to benefit large corporations and the wealthy. These will compound the hit to public finances even more and benefit (and not for the first time) the old at the expense of the young and the rich at the expense of the poor. Investment in public services and infrastructure will suffer. Alongside all of these we exit the Union, which emerged from the ashes of two World Wars to deliver 70 years of peace and security to its members, to a world of increasing and terrifying insecurity.

You may, or may not, have a problem with how the Referendum campaign was fought. But one thing is for sure. The choice was flawed. It was between a known world (in the EU) and an unknown world (whatever being outside the EU involves). And it was made poorer still because Leavers presented a slew of unknown worlds: lower and not lower immigration, inside and not inside the single market, money spent and not spent on the NHS, retained and not retained regional investment and agricultural subsidies. The list goes on. No one – least of all the Leave campaigners – could agree on what we were being offered.

And you are voiceless. Not one of our major political parties makes these points. Our MPs, some notable exceptions aside, shelter behind the flawed product of a flawed process. They dare not even point out, of a Referendum that they chose to make discretionary, that its result is not mandatory.

Theresa May has said that Brexit means Brexit. That may be so – but it leaves unanswered the question what does Brexit mean? Jeremy Corbyn, quite remarkably, trumped the demands of even the most vigorous Leave campaigners and demanded we trigger the exit mechanism immediately. The SNP has half an eye to a second independence referendum. The Liberal Democrats remain, for the time being, irrelevant.

And huge choices remain about the future shape of our relationship with Europe. Those choices were not put to the public in the Referendum. But this appears not to trouble the Government. These choices, it says, do not require the approval of our elected Parliament. instead they are purely personal decisions for the Prime Minister. A Prime Minister not selected by the electorate. Not even selected by the hundred thousand plus members of her own Party. Effectively selected by the Chair of the Conservative Parliamentary Party who, in breach (as I read them) of Conservative Party rules, crowned her Prime Minister following Andrea Leadsom’s decision to withdraw.

If that’s democracy, I’m a banana.

Who stands in the way of this extravagant assertion of personal power?

Not Her Majesty’s Opposition. The Labour Party is in crisis. Jeremy Corbyn barely pretends to lead a Parliamentary party. Carried aloft on the shoulders of his supporters – numbering perhaps half a percent of our population – he has almost entirely absented himself from the important business of holding the Government to account.

And whatever you think of Theresa May – and there is much to like about her Centre-Left program – good policy is unlikely to emerge from a process denuded of proper challenge. Our system of democracy was designed for two political parties. Not one.

None of this is good. Indeed, if your concern lies, as mine does, in proper Government it is very bad indeed. Open a newspaper. These are not the days to beta-test the hypothesis that our constitution will function fine without an Opposition.

To change it, two things must happen.

The Labour Party must return to the business of vigorous, challenging, healthy Opposition. And there must be a mainstream political voice demanding a democratic mandate – not merely that of the Prime Minister appointed by personal fiat of the Chair of the Conservative 1922 Committee – for whatever emerges from our negotiations with our European partners. ‘That deal – or the status quo?’: this is question that must be put before Parliament or the electorate. Anything less is to thumb our nose at the idea we are governed by democracy.

These are the things that must happen. And you can deliver them. You can bring them about.

There is a Labour leadership election.

One of the candidates, Owen Smith MP, who will likely go forward to challenge Jeremy Corbyn, has promised that a Labour Party he leads will offer the electorate a referendum on the terms of the deal we negotiate with our European partners. Once the shape of that deal is know, he says, the British people should choose between that deal and our present relationship. This will remove the taint of personal fiat from what is likely to be the most important decision concerning the future of the United Kingdom that any of us will see in our lifetimes.

And there is every reason to believe he will be in a position to offer that prospect to the British people in a General Election.

Leave aside the prospect of a snap election. Even were the formal process to start today, Philip Hammond has suggested the Brexit process will take six years to conclude. And, following discussions with Nicola Sturgeon, Theresa May has said the process will not even be started until there is a UK approach to negotiations. And the assessment, of course, is a political one but I think our European partners will be happy for the British people to be given a choice between the status quo and a revised deal. That, after all, is what has happened with second referendums in the past.

So, a Labour Party, led by Owen Smith, offering to the British Electorate in a general election a choice. A choice between a new deal – whatever shape that deal takes – and sticking with what we have.

If you have been (for longer than six months) a member of the Labour Party or an affiliated supporter then I urge you to vote for Owen Smith. But even if you are not, you can still vote. To do so you must become a registered supporter. And the window for doing so will open here on Monday at 5pm. For £25 you can vote in the Leadership Election. That money, if you can afford it, will be well spent. The race is very tight indeed so your vote will count. You can also register here to receive prompts and notifications to register and vote. Please, take that step too.

I do not urge this action because it helps the Labour Party, although it does. I do not urge the action because I support Owen Smith, although it will help him. I urge it for two reasons. It stands the best chance of restoring functioning Parliamentary democracy and it stands the best chance of delivering to the British people a choice about Brexit that democracy demands that they have.

So Friend, please: if you care about these things, I ask you to register as a supporter. And to recruit others to do the same. These are matters too important to be ignored as parochial Labour Party concerns. They are central to the financial and cultural and political health of your country. The vote is likely to be close. And these are actions you can take. You can act to restore and preserve that health.

Please do share this post. Please share it on email, on Facebook, on Twitter, and orally too. Reach out. Smile. You can help.

Thank you for reading.

Jolyon

Note: Please, add your thoughts below. But posts are moderated and abusive posts will be rejected.

This is the Leave vote for England and Wales (by constituency and political party)

And this is the Remain vote

If you click here you’ll be taken to an interactive and enlarged version of these maps. Click on your constituency and you’ll see its Estimated (and if available Actual) Remain and Leave Votes; a sense check against another similar exercise (this carried out by Chris Hanretty); and the 2015 General Election results for your constituency.

The Leave/Remain data was not, or not often, collected by constituency and so you’ll need an explanation of how these maps were constructed. Click here for that explanation (by the brilliant @ZackKorman). He also explains why the map does not extend to Northern Ireland and Scotland.

Especially interesting are these tables which show, for England and Wales, how many constituencies of each political party voted Remain and Leave and how many constituencies of each runner up political party voted remain and leave. I’m not going to do the editorialising. I’ll leave that to others.

Enormous thanks to Zachary Korman who you should certainly follow on twitter: Follow @ZackKorman.

Jolyon Maugham QC

It’s not difficult. It just requires clear-sightedness and a little courage.

We voted for Brexit. But 48% of us who voted in that referendum – more if recent polling is right – have a result we don’t want. And many of us are now profoundly worried about what the future holds.

No political party speaks for us or for our concerns. Even though we number over 16m – a hundred times or more what will separate Corbyn and his leadership challenger, whoever that be.

If you’re not a member you can vote in Labour’s leadership election as a registered supporter. A £3 voter. Engage us – or even 1% of us – and Corbyn will return to obscurity.

Promise us that a Labour Party you lead will campaign to return to the nation once the outline of a deal on Brexit is known. Another referendum on that deal. That promise is a good promise to make. There was no known Leave proposition. No world we could weigh on the scales against the one we have. When that world is known, the electorate should get to choose which it wants.

A political party that speaks for you, on an issue that dominates your thoughts. For only £3.

That’s a proposition with a lot of buyers.

If you thought Labour Rules for selecting leaders were bad, you’re going to love these…

They really are dreadfully drafted but here’s what I think they mean.

The key is Rule 3.

It’s the duty of the 1922 to present a choice of candidates to the Party. The Party is defined (clause 1) as the Conservative and Unionist Party. And it shall consist of its members (clause 3). So, read naturally, the duty of the 1922 Committee is to give a choice of candidates to its members. This interpretation is rather supported by clause 10 (and the reference to “elected by the Party Members and Scottish Party Members”).

And also the following words in Rule 3 (“selects candidates for submission for election”). And Rule 5 which makes it clear that the final choice rests with members.

The Rule 3 duty arises: “Upon the initiation of an election for the Leader.” This language most naturally refers to the point at which a vacancy for party leader arises and the process for selecting a new leader starts. Read as such, the 1922 Committee has a duty to put two candidates before the Members. In a world in which there was only one nomination – or only one valid nomination – for Leader then rules 4 and 7 make clear you don’t need an election. But we are not in that world. There were a number of nominations – and it was not suggested they were not valid.

Does the 1922 Committee (by Schedule 1 a Committee comprising all Conservative Members of Parliament) have power to change the Rules? Only if the Rules enable it to – and they don’t (see Rule 90). The 1922 Committee has a limited power to set out the procedure for choosing candidates to submit for election to the members (see Rule 3). But it’s pretty punchy to suggest this gives it power to ignore valid nominations given it has a duty to present to members a choice of candidates.

So what happens next? The safe thing to do would be to call for nominations again. It feels to me rather risky just opting for Michael Gove: who knows who Andrea Leadsom’s supporters would have voted for without her in the contest?  And if there are no nominations then we may well be able to enthrone Theresa May. But if there are, a choice would have to be put to members.

These are my thoughts. But do treat them with care. It’s early days. If I change my view I’ll say so here.

Postscript. I understand that the Chairman of the 1922 Committee has stated that the leadership contest is over. He may have had in mind Rule 35 of the 1922 Committee procedure for Conservative leadership elections which provides:

but, if my analysis above is correct and I have seen nothing to cause me to change my view, this Rule is beyond such powers as are available to the 1922 Committee. But in practical terms it is, of course, a moot point whether anyone will challenge the Chairman’s decision.

Earlier today I tweeted out the text of an email I’d sent to those who had helped fund this Crowd Justice campaign.

I promised to name the legal team you had funded and reproduce a copy of our letter to the Government.

Our legal team (in alphabetical order) is as follows (with further names to be added).

Paul Bowen QC, Gerry Facenna QC, Ben Jaffey, John Halford, Tim Johnston, Helen Mountfield QC and Jack Williams.

The letter reads as follows.

What follows is a blog post written by leading public law solicitor, John Halford of Bindmans LLP. John is one of the large team instructed from this piece of crowd-funding (from which the blog emerged). The post is written primarily for members of the public but I hope it contains sufficient legal analysis to enable lawyers, too, to engage with its content. If you’re a lawyer and you think it’s wrong, please do say so and why. I asked John to write it because I think it is important that, where at all possible, this exercise be conducted with maximum transparency and engagement with the public.

We are a small team, most of us working for a small fraction of what we usually charge. (I, of course, am working for nothing.) If there are people out there who are capable of researching links between Vote Leave and other campaigning groups – and there is certainly strong evidence that Vote Leave intended to break spending limits – we would be grateful to receive the fruits of that research. If there are people out there who would like to fund that research I would be grateful to hear from you.

As to the remainder of the crowd-funding work, we will write to the Government later this week putting the legal case for Article 50 to be triggered by Parliament and we will publish the letter on this site.

Jolyon Maugham

Uncovering the smoking cannon:  can anyone be held accountable for untruths told and overspending during the EU Referendum campaign?

In the aftermath of the EU Referendum, many have expressed the view that the outcome would, or at least could,  have been different had the Leave campaign being conducted differently.  It has also been suggested that there may have been overspending in breach of the strict rules for Designated Organisations, which receive a public subsidy for their campaigns, and by other campaigners.  What, if any, remedies does the law provide? There will be few lawyers have not been asked this question over the last week but the answer is not straightforward.

The starting point is the European Union Referendum Act 2015 which lays down the framework within which the Referendum was conducted.   In contrast to election statutes, it includes a petition mechanism for the result to be set aside. The Act briefly mentions that judicial review claims in respect of the Referendum have to be brought within a truncated six-week time period, but says nothing about the basis of such a claim.   The fact judicial review is recognised on the face of the Act as a possibility must mean Parliament contemplated such a claim being brought in certain circumstances. What might they be?

Judicial review claims are essentially concerned with the legality or procedural fairness of the decisions or actions of public authorities.  Plainly, members of the public cannot be challenged in this way regardless of how they vote or why. Democracy allows an irrational vote to be cast and values equally to one cast by the voter who has conscientiously taken account of all relevant considerations. It is also clear that some significant procedural irregularity on the part of  returning officers or other public officials that would have made a difference to the outcome could be the subject of judicial review claim.   But as regards this referendum,   a sufficiently egregious and large scale error by officials would almost certainly have come to light by now.

Campaigning on the basis of false or misleading statements is nowhere mentioned. That suggests, in the face of things, that however unethical it may be, it is not prohibited. That might be thought surprising, particularly when at least one Leave campaign assertion – the £350 million per week savings to be made as a result of Brexit – was identified as  misleading by public and private organisations,  but nevertheless sustained.

There is no real prospect of the courts reading in a duty not to knowingly or recklessly make such statements during a referendum campaign into the Act,  less still to enforce it by making a ruling that would force a second referendum  to answer the same question put to voters.  That is primarily because Parliament has fashioned a limited and narrow obligation to tell the truth to the electorate in the context of general elections, but did not  choose to impose a similar obligation during referendum campaigns. The election duty is found in section 106 of the 1983 Representation of the People Act which provides:

“A person who, or any director of any body or association corporate which—

(a) before or during an election,

(b) for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true.”

Even had this appeared in the 2015 Act, and it does not, the obligation does not extend to statements about policies or consequences  and indeed the courts have expressly recognised  that there is no accountability at law  for such statements: see Gibson J in The North Division of the County of Louth (1911) 6 O’M and H 103  at page 163 (approved of in what is now the leading case, R (Woolas) v The Speaker of the House of Commons [2010] EWHC 3169 (Admin)).  The European Convention on Human Rights provides no help either. Free and fair elections are guaranteed, not so  free and fair referenda.

Other legal and regulatory remedies would not affect the outcome of the referendum.  If, for example, a campaigner were successfully prosecuted for incitement to racial hatred or some other public order offence, the referendum result would be unaffected.  The same is true of complaints that might be made relying on the codes which regulate the conduct of Ministers, Members of Parliament and MEPs.  Political speech is specifically excluded from the regulatory regime for advertising.

The position on overspending might be different, however. If there were compelling evidence of the spending limits set down in the 2015 Act being contravened, either by a Designated Organisation, or  one or more other campaigners,  the Electoral Commission would be able to investigate and even has powers to hold an inquiry.  But the deadline for reporting campaign expenditure expires in December, many months after a direct challenge to the outcome of the referendum would be possible based on the findings of a Commission investigation. In theory then, if there was  the most egregious breach of the referendum expenditure rules that could be shown to have  materially influenced the outcome,   the courts just might be persuaded to intervene now by way of judicial review.  At present, there is no real evidence the rules were breached in that way. If there is a smoking cannon, it remains hidden.

It follows that the remedy for concerns about the outcome of the referendum having been distorted is almost certainly a political, rather than a legal, one.  Political because the referendum advises Parliament of the views of those who voted in it, but does not oblige Parliament to withdraw the UK from the EU at all costs.  And when deciding what to do next, MPs and peers can certainly take into account the extent to which those  they represent, whether Leave or Remain voters, were misled if there is compelling evidence of that having happened. Similarly, if members of the public have evidence of expenditure irregularities, that should be brought to the Election Commission’s attention urgently as it may be able to investigate and advise parliamentarians before a decision to evoke Article 50 of the Lisbon Treaty is made.

John Halford

Bindmans LLP

Picture this.

Two candidates left in the Conservative leadership race. The first is a recent convert to a vigorously pro-Brexit position. The second has a more cautious and nuanced position.

80% of the 150,000 odd members of the Conservative Party cast valid votes. It’s close but the first leadership candidate wins with 63,000 votes. She pushes the button straight away. And we Leave.

Now, assume a different world. The second wins. And she takes the view it’s important we think through where we want to be before we enter the one way street to Brexit. In the meantime, the economy deteriorates, there are factory closures and lay-offs, the NHS struggles to cope with the exodus of thousands of foreign doctors and nurses, and public pressure builds for us to Remain. She never pushes the button.

Which of these two worlds – the UK remaining in the EU or leaving it – happens has nothing to do with what the electorate thinks. The electorate never gets to vote on who becomes Leader of the Conservative Party. The decision is made by those who happen to be members of the Conservative Party. And perhaps they’re there, but I can’t find in the Constitution of the Conservative Party a requirement that you be old enough to vote, or resident in the UK, or on the electoral register to become a member of the Conservative Party.

How’s that democracy? Better, surely, that the decision when, and indeed if, to press the button be one for our elected Parliament.

Leave aside, for a second, the legal argument. It’s a narrow point, outlined here, important in its consequences but one for lawyers. There are other arguments, too, that Parliament should decide.

Parliament is supreme. It, as someone may once have said, should have control. And it chose to enact a referendum that doesn’t take us out of the European Union. Could have. Didn’t. Instead it chose a referendum that advises. Advises someone. But who? Our unelected Prime Minister or our elected Parliament? That’s a question with only one sensible answer.

And the critical question of what our relationship with our European partners looks like post-Brexit? What if a deal on free movement were struck behind the scenes before the Article 50 button was pressed. There’s no public mandate for any particular deal; could an unelected PM choose on a personal whim to reject such a deal on the part of the citizens of the United Kingdom? Or does our elected Parliament get to decide whether, in that world, we leave?

Ultimately, the question a Divisional Court and Supreme Court will have to decide – PM or Parliament – rests on a legal argument. And that’s a good thing too. Without the rule of law we have dictatorship.

But the idea there’s something undemocratic about our elected Parliament rather than our unelected Prime Minister deciding whether to push the button? It struggles to raise itself from the swamp of nonsense. And those who argue Parliament has no role are not the friends of democracy. They fear it.