Thread by @JolyonMaugham

Here's what @MollyMEP and @GoodLawProject say are the legal obligations of the DExEU Secretary and the Chancellor in relation to their secret Brexit documents. THREAD.

The request that they hand over the documents is made in a "judicial review". A judicial review is request for a judge to "review" whether some action or inaction by a public body is lawful. /1

Typically you start a judicial review with an exchange of letters. You ask the public body to comply with what you say is the law and it tells you whether and why it believes it has. If you're not satisfied with its answer you then file a statement of your case. /2

Let me begin with the Statement of our Case. We start with two points. First that the public interest in release of these documents is profound. And second that the Government's position is, remarkably, that we can see nothing of them. /3

We then outline the documents we say we want. Not just the sectoral studies. But also a document we believe exists in which the Treasury weighs up the possible pros of leaving the customs union with the cons of a poorer trading relationship with the EU. /4

The Government's position in correspondence with us was to accept that the sectoral studies existed but to refuse to show them to us. And, of the Treasury study, to refuse to confirm or deny it even existed. /5

We then tell the court what we are asking it to do. We want it so say David Davis and Philip Hammond are behaving unlawfully and to disclose the documents or to disclose most of them. /6

We then explain the basis for our request. Parliament gave us a way to ask Government to disclose documents: the Freedom of Information Act. But we say we also have a different judge-made ('common law') right and also one under the European Convention of Human Rights. /7

We then explain we tried to use the Freedom of Information Act but the Government said we did not qualify. This is important. When Parliament crafts a right subject to limitations it might thought to be ruling out the existence of some similar right without those limitations. /8

When we wrote to the Government we relied on our common law and ECHR rights not the Freedom of Information Act. But the Government said we fell foul of the limitations to the Act. /9

We then begin to construct our case for the existence of a right additional to the FOIA.

First we say, that the Government *could* disclose the documents even if the FOIA did not exist. And we must be able to ask it to disclose without using its FOIA powers. /10

Second, we say these points are supported by a Supreme Court decision in a case called Kennedy. (If you want, you can read the Kennedy decision here supremecourt.uk/decided-cases/…). /11

And third we say they are also supported by the right in Article 10 of the European Convention on Human Rights to receive and impart information. /12

We then deal with what the Government has said in its letter to us refusing to disclose the documents. The only argument it raised was this: because there was a right in the Freedom of Information Act it followed there was no other right. /13

We explain what is wrong with that argument. But we also point out that the Freedom of Information Act is just too slow to be useful.

(You learn, as you get older, that if your arguments are based on commonsense they are more likely to be right). /14

We then turn to the substance of our requests.

We say that the Government, by failing even to consider whether the common law and Article 10 criteria are met, has behaved unlawfully in refusing our requests. /15

But we don't stop there.

We go on to talk about what we say are the reasons why, if the Government did consider the common law and Article 10 criteria, it would be obliged to disclose the documents. We say the public interest is exceptionally strong. /16

We need this material to be able to hold Government to account. Businesses, organisations and individuals need it to be able to plan for life after Brexit. /17

The public and Parliamentarians need the material to inform how they should lobby or vote on the final Brexit deal. /18

The reasons the Government has given for refusing to disclose the documents are, we say, unpersuasive.

First, they don't discuss our negotiating position, They just inform it. We point out many other European governments have released this information. /19

Second, we say that our negotiating partners will base their negotiating position on their own analysis - not on ours. /20

The Government's position in relation to the Treasury study is that it won't even confirm whether such a thing exists. We say this is a "surprising and striking" position (that's lawyer for "barmy"). /21

Finally, on the substance, we address the possibility that the Government will adopt a more moderate position: permitting the disclosure of some material but refusing to disclose other material. /22

We say that partial disclosure would not be sufficient. But we also say that, if the court is tempted by the Government's position, it must require the Government carefully to justify its position. /23

We then conclude our written case by setting out a timetable given what we say is the exceptional importance and urgency of the case. /24

The Government has since written to the Court setting out its reasons why, it says, the case is not suitable for "expedition". (You can read the full letter here dropbox.com/s/hg3473ed87e0…). /25

So. That's our written case - and the Government's response so far. If there is real interest I will - later on - walk tweeps through the key elements of the witness statement evidence in which we explore some of these matters in more detail. /26