Arguably the most important constitutional legal case in living memory is being supported by unnamed businesses, individuals and business persons. That says a lot about the health (or anaemia) of our legal system and democracy.
- This article first appeared on Ben’s blog here.
The dispute concerns the exact meaning of the UK’s unwritten ‘constitutional requirements’. Some lawyers argue that before the next Prime Minister can press the Big Red Button and trigger Article 50 of the Lisbon Treaty which starts the two-year countdown for UK to withdraw from the EU, Parliament must first authorise the move by passing new law after debate and voting.
The law firm on the case, Mishcon de Reya, specializes in private clients. It has instructed a range of heavy-hitting public law barristers.
The law firm said in a statement that its clients were a group of concerned British citizens, but it did not name them or say who was paying for the legal action.
References to funding in this report suggest (or assume) that this is a case in which the (probably substantial…?) lawyers’ fees are being paid on a private basis. I don’t understand why they are not naming the clients or confirming how the case is funded. A case of such high political profile and clear public interest demands a correspondingly high degree of transparency.
By not revealing the identities of the client/s, you are gifting your political opponents the easy retort that this is the action of a wealthy elite minority of London-based liberals with no respect for mob rule (I mean ‘democracy’). The government’s usual contempt for meddling lawyers has been taken up a notch in response to this case.
‘I very much deprecate the idea of law firms, big law firms, trying to interfere in our political system to overturn the will of the people. We don’t need ultra-high-paid lawyers trampling all over the political space.’
Philip Hammond, Foreign Secretary
So name them, please. Or explain why you have chosen not to name them, if you haven’t already. There are sometimes good reasons for this, but ordinarily those reasons should be out in the open.
Naming the clients could jump-start discussions and debates about what Brexit may mean for these businesses. Discussions about the role of businesses and business people in the forthcoming political struggle and in the constitutional life of the UK. These conversations may matter to the outcome and scope of any Brexit and inform public debate.
Dispel any mistrust that this action is being driven by shadowy economic actors with piles of money stashed in the Cayman Islands. Because that’s what your opponents, (the ‘decent people’), will pick on.
If Brexit is going to be halted, we have a right to know who it’s halted by, and who funded it.
What the Brexit legal action highlights is the extreme inequality of our legal system, battered by successive Labour, coalition and Tory cuts. In today’s legal landscape, cases of such ground-breaking public significance often depend on wealth.
As an Irish Judge famously said, back in the Victorian era:
In England, justice is open to all, like the Ritz hotel.
My own back-of-a-fag-packet view is that I hold out little hope for the prospects of this legal challenge. Much as I really would like to be excited about it, I believe it’s too political a matter for Judges to resolve by judicial review. But it’s far from black and white. Putting aside the issues around transparency, the case is a welcome opportunity to clarify and inform the process of withdrawal, whatever your politics are.
Ben is a barrister at 36 Bedford Row whose practice combines public and private law