The most important constitutional case of a generation began
somewhat inauspiciously this Summer when a Spanish hairdresser,
Dier Dos Santos, issued an urgent claim seeking judicial review of
the decision the Government had then yet to make about precisely
how to exit the EU at the unglamorous counter of London's
It also came as something as a surprise to the Government
because there had been none of the normal correspondence back and
forth between solicitors beforehand. Yet the courts took the claim
seriously and listed it for an urgent directions hearing on 19 July
before the Queens Bench Division's President.
By the time of that hearing, the Government had pinned its legal
colours to the mast - there would be no Act of Parliament to
authorise Brexit - instead the new Prime Minister planned to use
the rusty toolbox of medieval powers known as the Royal Prerogative
to give effect to the EU Referendum result.
Meanwhile, two other legal claims were threatened - one by city
firm Mishcon de Reya, acting for an unidentified group of wealthy
clients, another by Bindmans, whose work was funded rather
differently through a CrowdJustice campaign co-ordinated by Jolyon
Both sets of lawyers - and several others - were invited along
to court to explain their intentions at the De Santos directions
hearing. It emerged that the Mishcons claim was to be courageously
headed by investment manager Gina Miller. Her claim was also
designated as the lead case, though the Court was told, and
accepted, that others besides needed to be heard.
After considering the Government's response to the letter
sent on their behalf, the Bindmans client group decided to actively
participate in the litigation - something which the Court had
anticipated by making special directions for them to be
'interested parties' and so entitled to be heard as of
But what can a small group of concerned citizens add to a case
where the UK's biggest constitutional law gun – Lord
Pannick QC - has already been commissioned and pointed towards the
Government by Ms Miller?
There are three answers.
First, involvement of ordinary British Citizens from around the
UK and abroad in this extraordinary case will add a critical
democratic ingredient. The Bindmans group is headed by Grahame
Pigney, a British citizen living in France, who ran the Say Yes 2
Europe grassroots campaign against Brexit, his son Rob Pigney, 52,
Paul Cartwright, 50, a Gibraltarian national who runs Brex-IN,
Christopher Formaggia, 49, who lives in Wales, and Tahmid
Chowdhury, 21, a London student.
None are wealthy or in the public eye. None answer to
shareholders or directors. What unites them is a concern about a
profoundly undemocratic decisions being made by the Prime Minister
alone as to whether, how and when Britain leaves the EU and what
becomes of the EU rights they and others currently hold. They say
that, in representative democracy, these are matters for Parliament
alone, not the Executive.
Secondly, the reason why they say that is important. The group
believe that, although EU rights originate in the EU, they have
been given to ordinary British Citizens like them as part of a
citizenship package by the UK Parliament and so only Parliament can
strip away these rights, especially in circumstances where the UK
is a union of different states and has a sovereign relationship
with other territories such as Gibraltar.
This freestanding argument needs to be put to the court because
it affects each and every one of Britain's 65 million
Thirdly, the group is deeply committed to transparency –
and it matter more in this case than almost any other. All have
publicly campaigned to promote the benefits of EU rights, but none
have benefited financially from doing so. All have agreed to being
identified as involved in the case, despite the criticism they are
likely to face. The funding for their case will be publicly raised
direct from the public through the CrowdJustice site. Their lawyers
will not become rich from the case, not least because they are
working at rates lower than those of the government team. And most
importantly, the group will be completely transparent about the
legal arguments it is putting to the court for example by
publishing their lawyers' written submissions, and they will
press for others, particularly the government, to reciprocate. This
is a case which affects every member of the public. Those who are
interested should be able to see, and understand, debate, applaud
or disagree with those arguments.
For these things to happen though, the case needs to be funded
through those public contributions. Those who are interested in
making one can visit the group's fundraising page below.
The government has been working to incorporate the changes required as a result of the OECD's work on BEPS Action 5: Harmful Tax Practices, which requires implementation of a Nexus approach to the Patent Box regime.
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