On new metaphorical applications of the Schrödinger’s Cat thought-experiment or joke and the need for a new legal test case, in the context of #Brexit
Before we get close again to a default, no-deal Brexit, perhaps next time with no extension on offer, it’d be nice to 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.
A key question within that is whether there would need to be a new Act of Parliament before the PM could revoke Article 50 notice. What does the PM think is the answer to that? It’s not at all clear from the news what she thinks.
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“.
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.
Somebody must still take the PM to court
However, 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 next time the PM is about to be 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. If nobody else will, then I shall try again, with less urgency but equal importance, to take the PM to court myself.
I really need qualified legal help for this project. This shouldn’t be left to me, an impecunious litigant-in-person. My claim won’t necessarily be simple. 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. But, whether simple or complicated, my JR claim will elicit a ruling at last as to whether or not an Act of Parliament is needed in order to revoke Article 50 notice. My claim will end the present uncertainty whether an Act is needed for revocation just as one was found in Miller to be needed in order to give Article 50 notice in the first place. Once my case is decided it will no longer matter what the PM thought the law was (the mental box) before the legal box was opened.
I would be grateful to hear from any patriotic lawyers who are minded to help me with this challenging project. I am a pensioner, in receipt of means-tested benefits, eligible for fee remission. I need sufficient legal help immediately on a conditional fee basis in order to draft a letter before action and an attractive crowd-funding appeal, with a sufficient understanding as to what the claim itself will look like when that is drafted. The conditional fee agreement can be defined in terms of a limitation of my liability for fees to what I raise from crowd-funding, rather than in terms of outcome.
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. I intend to correct belatedly the former overlooking of what should have been an obvious need for clarification all along, I’m planning to do this myself because it needs to be done and nobody else has even tried.