Metaphorical applications of the Schrodinger’s Cat thought-experiment
If we get close to a default, no-deal Brexit again, next time with no extension on offer, we may discover the British PM’s as-yet-undisclosed belief as to the correct answer to an unresolved constitutional question. That question is what the constitutional requirements are for revoking the Article 50 notice already given.
There are actually two boxes, and two cats. There is what the constitutional requirements actually are, which only a court case can determine. I call that “the legal box“. And then there is what the PM thinks the constitutional requirements are, which I call “the mental box“.
A key question is whether there would need to be a new Act of Parliament before the PM could revoke Article 50 notice.
I went to bed on Wednesday night with that final hour less than two days in the future. I had spent the evening drafting a rough-and-ready judicial review application, which I would have filed in the Admin Court on Thursday morning with an application for urgent consideration (within two hours) of an interim remedy, an injunction until further order preventing the PM from purporting to revoke Article 50 notice without statutory authority, which we know she does not have yet.
Earlier on Wednesday, I had attended Court 37 at the Royal Courts of Justice, hoping to make an amateurish, free-standing and (it turned out) misconceived application for an urgent injunction, without having first made the necessary judicial review application needed to provide the injunction application with context. The judge kindly suggested starting again, in the Admin Court.
I had decided to make a stand-alone injunction application in the hope of saving the UK from a possible purported revocation of Article 50 notice that many think would have been unlawful, and in order to get a glimpse inside the legal box.
When I woke up the next morning in the nearest hotel to the Royal Courts of Justice, I learnt of overnight developments that meant that the matter might not become urgent again until the last week of October. Consequently, I went home. But I’ll have to get back into court, with a well-drafted JR application, sooner or later. Otherwise, we’ll still not know what’s in the legal box by the time the PM is faced with a straight choice between no-deal or no-Brexit. Unless somebody makes a relevant application to court – and as far as I know, nobody has tried so far, apart from me – we still won’t know on 31st October what the constitutional requirements are for revoking Article 50.
I really need qualified legal help for this project. This shouldn’t be left to me, an impecunious litigant-in-person. Miller had 20,000 pages of evidence and submissions and led to a judgment 97 pages long in the Supreme Court. My JR claim will be a mirror image of the Miller claim, with the shoe on the other foot, i.e. a Leave gander seeking sauce equality with a Remain goose. My claim won’t necessarily be simple. But it will rule, at last, whether an Act of Parliament is needed in order to revoke Article 50 notice, just as one was needed in order to give Article 50 notice in the first place. Once my case is decided, it won’t matter if the PM thinks otherwise.
I would be grateful to hear from any patriotic lawyers who are minded to help me with this challenging project, pro bono. (I am a pensioner, in receipt of means-tested benefits. I cannot pay counsel. I will apply for a protective costs order, and fee remission.)
How we got so close to the unresolved constitutional question mattering at a turning point in this nation’s history, with nobody thinking to ask the courts to resolve the question, apart from me, at what might have been the last minute, beats me.