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1 ~, In the High Court of Justice CO Ref no: CO/5685/2097 ~ ~ C~ueen's Bench Division V ~ Administrative Court I n the matter of a claim for Judicial Review ~~ce~v~«v A C~MINISTRATIVE ~t~u~7 O~FlC~ 0 ~ FES ~~1~ The Queen on the application of %' ~` GOOD LAW PROJECT LIMITED and Others versus SECRETARY OF STATE FOR EXITING THE EUROPEAN U NION and Others Notice of RENEWAL of claim for permission to apply for Judicial Revises {C P K 54.12) 7. 'This notice must be lodged in the Administrative Court Office; by post or in person and be served upon the defendant (and interested parties who were served with the claim form) vc~ithin 7 days of the service on the claimant or his solicitor of the notice that the claim far permission has been refused. 2.!f fhe claim was issued on ora~er 7 Ocfo6er 2013, a fee is payable on submission of Form 868. Failure fo pay the fee or lodge a certified Application for Fee remission ma y result in the claim being struck ouf. The form forapplicafion for Remission ofa Fee is obtainable from the Justice websife htta://hmcfsformfrnder. iustice. qov. uk/hmcts/formfinder, do 3. if this form has not been lodged within 7 days of service (pars 1 above) please set out below the reasons fordelay: 4. Sef out below the grounds for seeking reconsideration; SSE At'CAC t E~J ~ CTQ~,ur~5 ~e S~K1~J~ '~CO~JSID Q'~ATtO.~ 5. Please supply COUNSEL'S NAME: Ti.to~rH`/ 'l ~~'n-~ay^'e CC~G COUNSEL'TELEPHONE NUMBER: 020 ~63Z gso0 Signed D ed ~ FE$QuA ~ 2e~g Claimant's Ref No. Co,56g5 } TeI.Na azo 3530 X999 Fax Na. Ta the Administrative Court OfFice, Royal Courts of Justice, Strand, London, WC2A 2LL FORM 86B

2 IN THE HIGH COURT OF JUSTICE QUEEN S BENCH DIVISION ADMINISTRATIVE COURT CO/5685/2017 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BETWEEN THE QUEEN ON THE APPLICATION OF (1) THE GOOD LAW PROJECT LIMITED (2) MOLLY SCOTT CATO (MEP) And Claimants (1) SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION (2) CHANCELLOR OF THE EXCHEQUER Defendants And THE INFORMATION COMMISSIONER Interested Party CLAIMANTS GROUNDS FOR SEEKING RECONSIDERATION 1. Permission to apply for judicial review was refused on the papers by an Order of the Honourable Mr. Justice Garnham dated 22 nd January 2018, served on the Claimants on 25 th January

3 2. The Claimants seek reconsideration of their permission application at an oral hearing. Full details of the claim are set out in the Claimants Statement of Facts and Grounds dated 7 th December 2017, and in the supporting witness statements of: (i) (ii) (iii) (iv) (v) Jolyon Maugham QC; Molly Scott Cato MEP; Maurice Frankel; Alasdair Smith; and Swati Dhingra. Nature of the claim 3. This case is about the Claimants attempt to obtain disclosure from the Defendants ( the DEXEU Secretary and the Chancellor ) of certain information that is of very considerable importance in informing public debate about the current negotiations regarding the UK s proposed departure from the European Union (or Brexit ). By letters addressed to the Defendants dated 12 th October 2017, the Claimants sought disclosure of: (a) the then most up-to-date versions of certain studies focussing on 58 sectors of the economy about the likely impact of Brexit, to which the Government had made public reference on a number of occasions ( the Sectoral Studies ); and (b) the then most up-to-date version of a report prepared by HM Treasury, comparing the predicted economic detriment of Brexit with the predicted economic benefits of alternative free trade arrangements ( the HM Treasury Report ). 4. By materially identical refusal letters dated 30 th October 2017 (on behalf of the Chancellor) and 31 st October 2017 (on behalf of the DEXEU Secretary), the Defendants: 2

4 (a) in relation to the Sectoral Studies, confirmed that they held information falling within the scope of the request, but refused to disclose any part of that information; and (b) in relation to the HM Treasury Report, refused either to confirm or deny whether they held any information falling within the scope of the request. 5. A central feature of this case is that, from the point when they made their requests on 12 th October 2017, the Claimants have made it clear that they relied on the Defendants common law powers to disclose information, and on the Claimants rights under Article 10 of the European Convention on Human Rights ( ECHR ). The request was not made under the Freedom of Information Act 2000 ( FOIA ). The Judge s Grounds for refusal 6. The Claimants application for permission was refused on the papers by the Judge on the following basis: 2. In my view, there is no properly arguable claim here because there is an adequate alternative remedy, namely that provided by [FOIA], which has not been employed. 3. As the defendants correctly submit, where, as here, a specialist statutory appeal regime is established by statute, JR will be permitted only in exceptional circumstances. There is no proper argument that there are such circumstances here. In particular, the suggested urgency does not provide an exceptional circumstance. The timetables provided by the Act represents [sic] a fair balance between the competing interests engaged when an application for information is made. In any event, decisions can be made under FOIA with expedition when the circumstances demand. 4. Kennedy v Charity Commissioners [2015] AC 455 does not, even arguably, enable the Claimants to avoid the limitations of the [FOIA]. 3

5 5. Rights under the common law and under art 10 ECHR are no greater than those under the [FOIA]. FOIA provides an alternative remedy and its existence means JR should not be entertained. The Claimants grounds for renewing their application for permission 7. The Judge was wrong to treat FOIA as providing the Claimants with a suitable alternative remedy, thereby precluding them from seeking judicial review. 8. The information requests in this case were made on the basis of the common law and Article 10 of the ECHR, and not under FOIA. The remedies created by FOIA involving a right to complain to the Information Commissioner, followed by an appeal to a statutory Tribunal relate to the information access rights created by FOIA. Those remedies do not relate to the Claimants parallel rights of access under the common law and Article 10. The Judge was therefore wrong to require the Claimants to proceed under FOIA. 9. Further, for the reasons set out in detail in the Statement of Facts and Grounds (at 33-38) and in the witness statement of Maurice Frankel, the right of access to information under FOIA does not constitute a suitable alternative remedy for the Claimants. This is because of the time that would be taken up in the FOIA process. If the Claimants are confined to their rights under FOIA, then it is highly likely that even if the information sought is ultimately made public this will be too late for it to be of any practical value in informing public debate about Brexit. In this situation the Claimants would be deprived of the substance of their right of access to the information sought, since the exercise of that right would be deprived of any real value or purpose. It cannot be said that a course of action that would deprive the Claimants of the substance of the right exercised by them, amounts to a suitable alternative remedy in respect of that right. 10. The Judge referred to the possibility that decisions in relation to any FOIA request made by the Claimants could be made with expedition. The Information 4

6 Commissioner s application for permission to intervene refers in general terms to this possibility (see at 13 of that application), but gives no detail as to any particular steps the Information Commissioner could or might take in this regard. Absent such detail, the Judge ought not to have taken this consideration into account in refusing permission. Expedition 11. At the heart of the Claimants case is the assertion that the requested information needs to be made public as soon as possible. As will be apparent from the points made above, that is one reason why the Claimants contend that FOIA does not provide them with an adequate alternative remedy. In the circumstances, the Claimants seek expedition in relation to the hearing of this claim for judicial review. 12. The Claimants made an application for urgent consideration when the claim was lodged; this was refused on paper by the Honourable Mr. Justice Supperstone (by a decision dated 11 th December 2017 and received on 14 th December 2017). Now that the Claimants are seeking an oral hearing of their renewed application for permission, which will bring the matter before the Court for an oral hearing for the first time, it is appropriate for the question of expedition to be considered afresh. 13. The Claimants ask that their renewed oral application for permission should be listed as soon as possible, and in any event within 14 days of the date when this application for renewed consideration is lodged with the Court. 14. If permission is granted, the Claimants will ask the Court to set out a timetable that will enable the substantive hearing of their application to take place no more than 4 weeks after the hearing of their oral application for permission. In relation to the proposed abbreviated timetable for both the oral permission hearing and the substantive hearing, the Claimants note that the only point so far relied upon by the Defendants is that there is an appropriate alternative remedy and that judicial review 5

7 is not available. This is a short point, which is unlikely to require extensive further preparation from any party prior to oral argument. Costs 15. The Judge ordered that the Claimants should pay the Defendants costs of preparing the acknowledgment of service, in the sum of 4,573. If permission is granted at an oral hearing, then the Claimants will ask the Court to set aside this costs order, and to order instead that all matters of costs should be dealt with at the conclusion of the proceedings. 16. The Claimants in any event object both to the making and the quantum of the costs order, and will serve their written grounds of objection within 14 days of the Judge s Order refusing permission. 17. The Claimants consider that, if permission is granted, then this case is appropriate for costs capping. They will write to the Defendants with their proposals in this regard. If no agreement is reached, then the Claimants will ask the Court to deal with this issue at the oral permission hearing. TIMOTHY PITT-PAYNE QC ROBIN HOPKINS 11KBW 1 st February