Category Archives: EU

QC sets out why the Defend Brexit Case should be heard

QC sets out why the ‘Defend Brexit’ Case should be heard

Our excellent QC, Mr Anthony Speaight QC, has written a carefully (and silkily!) worded Skeleton Argument to persuade the single Lord Justice of Appeal, who will be looking at our paperwork in the next few weeks, to give permission for our case to be heard.

Mr Speaight has worked carefully to stress the point that Mr Justice Spencer’s decision is clearly wrong.

I think he has done a very good job in focussing the arguments on points which should appeal to any fair-minded judge, even one who perhaps voted Remain!

Here is the text of the Skeleton Argument:-

CLAIMANT’S SKELETON ARGUMENT for APPEAL

1. The authors of this skeleton recognise that a finding of “totally without merit” by a High Court judge is an unpromising beginning for any submission, but for the reasons herein submit that the Claimant has an argument which is throughly arguable, and that, indeed, there are clear positive public interest reasons for it being heard.

The Issue

2. The issue between the parties is this:-

Is the power to agree extensions of time under article 50,

(a) possessed by the Government as a prerogative power? – which is the Defendant’s case^{^[1]}; or

(b) one requiring parliamentary sanction? – which, by analogy to the power to give notice of withdrawal per R (Miller) v Secretary of State [2018] AC 61, is the Claimant’s case.

3. Art 50 of the Treaty on the European Union (‘TEU’) provides:-

“3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

(emphasis added)

Thus for an extension to the UK’s notice period to be effective in EU law there must be agreement on the part of the UK. This case concerns the administrative action of the UK in proferring, or making, that agreement.

4. To date there have been two extensions under art.50(3):

22^nd March 2019 an extension to 22^nd May 2019 provided the House of Commons approves the Withdrawal Agreement by 29^thMarch 2019; or otherwise until 12^th April 2019^{^[2]}

11^th April 2019 an extension to 31^stOctober 2019^{^[3]}.

5. This claim is directly concerned with the first of the two extensions which to date have been agreed between the UK and the EU, namely that on 22^nd March 2019; but the arguments respectively presented by the parties will be equally applicable to the law in respect of any future extension – for which reason there must be some general public interest in a Court decision.

6. The Defendant argues:-

“The various statutory schemes relating to the withdrawal of the UK from the EU are premised upon, and expressly recognise, the continued power of the Government to seek and to agree extensions of time in relation to withdrawal under Article 50(3) TEU.”^{^[4]}

7. The Claimant would accept that there was parliamentary sanction for the second extension on 11^thApril: that is because the European Union (Withdrawal) Act 2019, which was passed on 8^th April 2019, mandated the Government to seek an extension under art 50(3). However, the Claimant disputes the Defendant’s contention in respect of the first extension on 22^ndMarch 2019, on the grounds that:-

(1) No statute in force as at 22^nd March 2019 was premised upon, or expressly recognised, a prerogative power to agree extensions.

(2) Even if (contrary to (1)) there was such a statutory premise or recognition, that could not create a prerogative power, if as a matter of law none such existed.

Ground of dispute (1): no statute recognised a prerogative power to extend

8. The Summary Grounds of Resistance mention the following statutes which were in force as at 22^ndMarch 2019:-

European Communities Act 1972

European Union Referendum Act 2015

European Union (Notification of Withdrawal) Act 2017

European Union (Withdrawal) Act 2018

Of this list, the Acts of 1972, 2015 and 2017 can be eliminated immediately: there is no suggestion that they contain any allusion, express or implied, to a power to extend the withdrawal period.

9. The question here is whether the Act of 2018 contained any recognition of a prerogative power to extend. The feature of the Act on which the Defendant relies is the power in s.20(4) conferred on a Minister of the Crown by regulation to,

“amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”

This statutory instrument is subject to the affirmative resolution procedure. In the absence of the exercise of that power “exit day” is defined in the Interpretation section, s.20(1):

“ ‘exit day’ means 29 March 2019 at 11.00pm”

10. It is accepted that this envisages that circumstances may arise such that 29^th March 2019, which was, of course, the date exactly 2 years after the giving of the notification of withdrawal, is not, after all, the end date of the withdrawal period. That could happen in more than one way. The first such way described in art 50 is if a withdrawal agreement enters into force at an earlier date. The second is if there is a unanimous decision to extend in agreement with the UK. But by recognising the possibility of that second, unanimous European Council decision, route, the Act of 2018 neither expressly states, nor by necessary implication implies, anything as to the mechanism by which the UK Government can be authorised to give the UK agreement component of, or precondition for, the unanimous European Council decision. The Act of 2018 is silent as to that mechanism.

11. To make the same point in a slightly different way, the Act of 2018 is as consistent with the UK Government requiring parliamentary authorisation before agreeing to an art 50(3) extension, as it is with the UK Government possessing a prerogative power so to agree. On any analysis the ministerial power to change the date meant by “exit day” involves a number of steps. Working backwards from the end of the process, the final step is both Houses of Parliament’s affirmative resolution. The penultimate step is the minister making a draft statutory instrument. Before that there must have been the European Council decision to extend. It is perfectly consistent with the 2018 Act that prior to the European Council meeting there must be parliamentary authorisation for the UK agreement to the extension.

12. That leaves for consideration the last statute mentioned by the Defendant in the Summary Grounds of Resistance, namely the European Union (Withdrawal) Act 2019. As has already been accepted, this may be said to confer a statutory power to agree an extension: it would otiose and nonsensical to mandate the Government to ask for an extension, if this did not connote the power to accept an extension if the request were granted. But if the Claimant’s submission is correct that there was no prerogative to agree the extension on 22^nd March, this subsequent development could not cure unlawfulness in the 22^ndMarch extension. The Claimant says that if the March extension was not effective, and so the withdrawal notification took effect on 29^th March 2019, then the only way by which EU membership could continue or be restored would have been by a request to rejoin under art 50(5), which plainly has not occurred.

Ground of dispute (2): if Parliament proceeded on a mistaken view that does not alter the pre-existing common law

13. Just as Parliament has an unlimited power to legislate to change the law, it is also within the competence of Parliament, with binding effect, to enact a declaration as to what the law is to be taken to be or to have been. But save when legislating in that way, Parliament cannot authoritatively interpret the law: that function belongs to the courts. If there is merely an inference that Parliament considered the law to have been ABC, that is not sufficient to make ABC the law, if the courts hold that the law had, in fact, been DEF. A parliamentary declaratory enactment must unambiguously be legislation constituting just that.

14. In R (W) v Lambeth Council [2002] EWCA Civ 613, [2002] 2 All ER 901 at [36] Brooke LJ, delivering the judgment of the Court, cited with approval this passage from “Bennion on Statutory Interpretation”:-

“Where it appears that an enactment proceeds upon a mistaken view of earlier law, the question may arise whether this effects a change in that law (apart from any amendment directly made by the enactment). Here it is necessary to remember that, except when legislating, Parliament has no power authoritatively to interpret the law. That function belongs to the judiciary alone. … A mere inference that Parliament has mistaken the nature or effect of some legal rule does not in itself amount to a declaration that the rule is other than what it is. However, the view taken by Parliament as to the legal meaning of a doubtful enactment may be treated as of persuasive, though not binding, authority.”

The judgment proceeded to discuss dicta of Lord Reid in two cases, including IRC v Dowdall [1952] AC 401, where at p.421 he said,

“It may well be that these paragraphs show that Parliament was under a misapprehension as to the existing law at the time, but it does not necessarily follow that if Parliament had been correctly informed it would have altered the law.”

15. Therefore, even if (contrary to our submission) there is to be discerned in the 2018 Act an assumption of the existence of a prerogative power to agree an extension, that does not suffice to create such a prerogative as part of the common law, if such has not, in fact, been the common law.

Is there a prerogative to agree an extension at common law?

16. Whilst the emphasis of the Summary Grounds of Resistance is on the argument that statutes have recognised a prerogative power, there is one paragraph which presents an a priori argument^{^[5]}: here the Defendant resists the analogy drawn by the Claimant with Milleron the ground that an Art 50 extension preserves the existing legal position, whereas withdrawal under art 50 effects a “legal and constitutional change”.

17. But the correctness or otherwise of that argument depends on which way one looks at “the existing legal position”. The 22^ndMarch extension can quite as properly be analysed as changing the existing legal and constitutional position, since:-

a. By the 2017 Act Parliament authorised the giving of an art 50 notification whose effect, in the absence of a new act intervening, was that after 29^th March 2019 there would no longer be, in the words of s.2(1) of the 1972 Act “rights, powers, liabilities, obligations and restrictions … arising by or under the Treaties”.

b. The UK’s agreement to the 22^nd March extension changed that position on 30^thMarch 2019 and subsequent days.

18. For present purposes the Claimant need do no more than show that its case is arguable. It was held in Miller that the loss of the source of law, constituted by EU law, was a sufficiently fundamental legal change as to be outside the scope of the prerogative (see [83]). It must surely be properly arguable that the restoration of the EU source of law in a period when otherwise it would not have existed is also a fundamental legal change.

19. Further citation from Miller herein is unnecessary, as the Claimant shares the Defendant’s analysis of the ratio of Miller – the Defendant summarises this as that the treaty prerogative is exercisable where the exercise will “not in any significant way alter domestic law” ^{^[6]}. But it is worth observing that Miller expressly states that the initial incorporation of EU law in 1972 was a significant constitutional change on a par with withdrawal from the EU^{^[7]}.

20. It is useful to think in terms of the water conduit analogy of which the Supreme Court spoke ([65] referring to Professor Finnis). One can visualise a water pipe running into our property from a public main under the street. On this pipe there are two taps: there is a stopcock in the highway by which the branch to our property can be turned off; and there is another tap within our property by which we can close the water pipe. In this analogy s.2 of the 1972 Act is the tap on our own property, and art 50 TEU is the stopcock in the highway. If one turns off either tap, the flow of water stops. If the UK ceases to be a member of the EU under EU law in accordance with the TEU there are no rights, liabilities etc arising from time to time under the Treaties, so there is nothing coming our way to which s.2 of the 1972 Act can give effect. And if the 1972 Act is repealed, then no matter what rights arise under the EU treaties, they will not be given effect by domestic law. So the conduit can be turned off at either end.

21. The Claimant’s essential submission here is that the turning on or off of the water tap at either end of the conduit is an action of constitutional significance which “in a significant way alters domestic law”.

22. It may, of course, be objected that there is a significant difference in the length of the period of time affected by the expiry of an art 50 notice, on the one hand, and the 22^ndMarch extension on the other hand. In the first case, one has to envisage at the minimum years before an application by the UK, if it were to be made, would be likely to lead to the restoration of EU law, whereas the duration of the March 2019 extension was no more than 2 months. But the anticipated duration does not alter the profundity of the legal difference between the EU membership and non-membership, or the application of EU law and its non-application: this is the binary distinction between in and out, or on and off.

Is this issue one of domestic law or EU law?

23. The Claimant’s argument is that, in terms of the conduit analogy, there was a defect in the extension which affected the EU end of the conduit. That is to say, there was a defect impinging on the element in the operation of art 50(3) contained in the words,

“… in agreement with the Member state concerned …”

24. It is not doubted that the UK presented a formal agreement. This is recorded in recital (12) of the European Council Decision:-

“(12) …. However, as set out in the letter from the Permanent Representative of the UK to the European Union , Sir Tim Barrow, of 22 March 2019, it has agreed, in accordance with Article 50(3) TEU, to the extension of the period referred to in that Article …”^{^[8]}

25. The meaning and effect of the TEU may be regarded as a matter of EU law. Viewed from the perspective of the European Council the correct procedure was followed. On the other hand, there is a lawfulness question, which is one of domestic law, as to the lawfulness of the domestic UK decision to present the “agreement” in the letter of the Permanent Representative: that is to say, the issue is as to the administrative, or public law, decision to make or present, that agreement, and to the administrative, or public law, action implementing that decision. Just as the original decision to withdraw is recognised by EU law to be one to be taken by a member state “in accordance with its own constitutional requirements” (art 50(1)), so, too, surely, the agreement component of an extension should be in accordance with the constitutional requirements of the state concerned.

26. The Claimant seeks declaratory relief. There may be argument whether the form of declaration sought goes too far. The Claimant may, or may not, be too ambitious in its contentions as to the consequences of the public law unlawfulness. But discussion of the formulation of the remedy is something which may more properly be addressed later, if permission for judicial review is granted. The Summary Grounds of Resistance do not suggest that an argument as to the appropriateness of the wording of the declaration sought is a reason for refusing permission for judicial review.

The learned judge’s error

27. The learned judge commences his reasons:

“The nub of the claim is the assertion that the UK left the EU at 11pm on 29^th March 2019 by operation of s.20(1) of the European Union (Withdrawal) Act 2018 and the definition of ‘exit day’….”^{^[9]}

With respect to the learned judge this proposition is neither the nub of, nor any part of, the Claimant ‘s argument. Nor did the Defendant understand that proposition to be the Claimant’s case.

28. This proposition would, indeed, have been a hopeless proposition for a number of reasons:-

a. The main operative sections of the 2018 Act were not yet in force in March 2019, and still are not in force.

b. The expression “exit day” in the 2018 Act is, in a sense, something of a misnomer. A more accurate expression could have been “commencement day”: “Exit day” is a term of art used by the Act to identify the day and time when the main operative sections have effect: see the operative ss.1, 2, 3, 4 and the definition in s.20.

c. The 2018 Act does not purport to effect the UK’s exit from the EU. Nor, indeed, could a domestic statute. The UK’s membership of the EU is a matter of international law and EU law achieved by the UK’s ratification of a treaty; and the withdrawal will be effected in accordance with the TEU. The 2018 Act’s purpose is complementary to that exit, by, in the above analogy, turning off the tap at the UK end of the conduit, and replicating almost all of the law which had flowed down the conduit.

29. The learned judge proceeds to say that Parliament plainly intended the definition of “exit day” to be capable of amendment, and that the definition has been lawfully amended by statutory instrument: that is not in dispute^{^[10]}. Finally, the learned judge says that the 2019 Act lawfully authorised the Prime Minister to seek an extension: it has been accepted above that this did authorise the request for, and the agreement to, the April extension , that is the 2^nd extension.

30. The Claimant, however, respectfully disagrees with the final statement by the learned judge:

“… the extension to 31^st October 2019 effected by the statutory instrument laid before Parliament at 4:15pm on 11^thApril 2019.”

The extension of the withdrawal period was effected by the European Council Decision. It was not, and could not have been, effected by a UK statutory instrument.

31. It is unfortunate, and disappointing for the Claimant, that following this misapprehension and the making of a “totally without merit” order, it will not have the normal opportunity to seek to explain and justify the arguability of its case at an oral hearing of a renewed application for permission.

Endnote

32. Following receipt of the learned judge’s order, members of the Claimant saw strongly expressed political opinions about Brexit posted on Facebook and Twitter by a High Court judge, who was believed to have been the learned judge who had made the order in this case. Within the very short time frame for lodging an application to the Court of Appeal grounds were drafted alleging bias on the part of the learned judge. Very shortly thereafter, and before the application had been served, it was realised that the social media postings were those of another High Court judge, namely Martin Spencer J., rather than Spencer J. The Claimant promptly notified the court of its wish to withdraw the bias ground, and of its apology for the unjustified criticism of the learned judge. The Claimant takes this opportunity to repeat that apology.

Conclusion

33. The Claimant submits that its case is clears the threshold of arguability, and that the learned judge misunderstood its argument. The Claimant invites the Court of Appeal to grant permission to apply for judicial review under CPR 52.15(3). Alternatively, at the very least, the Claimant invites the Court of Appeal to grant permission to appeal, and to quash the “totally without merit” order direction so as to permit fuller exploration of the merits and arguability of the Claimant’s case at a renewed oral application for permission in the High Court.

ANTHONY SPEAIGHT Q.C.

FRANCIS HOAR

counsel for the Claimant 12 July 2019

If you would like to help us bring this case to the Court of Appeal please do not forget to donate to https://www.englishdemocrats.party/brexit/battle/fund. Also do please make sure that your MP knows about the case and also help us try to break through the media blockade!

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^{^[1]} Defendant’s Summary Grounds of Resistance paragraph 2(a)

^{^[2]} European Council Decision at [2019] OJ L80

^{^[3]} European Council Decision at [2019] OJ L101

^{^[4]} Defendant’s Summary Grounds of Resistance paragraph 2(a).

^{^[5]} Summary Grounds of Resistance paragraph 21

^{^[6]} Summary Grounds of Resistance paragraph 21, quoting from Miller at [89].

^{^[7]} Millerat [81]

^{^[8]} European Council Decision of 22^ndMarch 2019 at [2019] OJ L80 I

^{^[9]} Reasons paragraph 3 on Order refusing permission

^{^[10]} Reasons paragraph 5 and 6

BREXIT CASE UPDATE

Since issuing the English Democrats’ case (claiming a Declaration that the UK left the EU on the expiry of our Notice on the 29^th March 2019), the Administrative Court has not shown itself to be either as speedy or efficient at dealing with the case.

This is despite my having made an initial Application to have the case expedited. This resulted in the Government Legal Department undertaking to provide their Grounds of Resistance by just before Easter on the 17^th April (usually they get a full 21 days). Mr Justice Supperstone made an Order which was emailed to me confirming that in these circumstances he was not going to order the Government Legal Department to serve their Grounds of Resistance any sooner.

Matters then did not progress as speedily as we would all have hoped. So I then made a further Application for the case to be expedited, but received no indication as to when any hearing was going to occur. So after waiting for almost another two months I went off on holiday for two weeks starting on the evening of Friday, 14^th June.

Until Tuesday, 25^th June we had heard nothing further from the Court. Although I am sole practitioner and most sole practitioners going on holiday simply close their office, I do have my assistant come in to check the post regularly and, of course, to answer any telephone calls, etc.

I was therefore dismayed to hear that a decision had been made, the image of which I am showing on this blog, not only refusing to give Permission, which would be strange enough, given Sir Richard Aitkin’s, the retired Court of Appeal Judge’s public comment that this case is “strongly arguable”, which is well above the merely “arguable” threshold that is supposed to guarantee permission to Judicially Review. But this Order went much further than that and certified on the flimsiest of grounds that our case was “Totally Without Merit”. This is a shorthand for a new procedure introduced in order to make things as difficult as possible for immigration cases, where the Administrative Court has been inundated with legally unmeritorious applications by litigants in person.

If a case is certified as being Totally Without Merit, then the consequence is that an application to Appeal to the Court of Appeal has to be made within 7 days of deemed service.

As you can see from the Court’s covering letter, the letter was purportedly sent out on Wednesday, 19^th June and therefore deemed served on Friday, 21^st. In fact it had not arrived on Friday, 21^stas my post was fully opened on that day.

It is possible that it arrived on the 22^ndor on Monday, 24^th, as it was opened when my assistant next went into the office on Tuesday, 25^th.

To catch me out it needed me to go away for two weeks or more. This holiday was the first time that I have done so for over 20 years!

The Order was then faxed that morning to our barrister, Francis Hoar, and work commenced to get this Application issued on or before the last date for issuing it, which was Friday, 28^th.

Francis did a superb job and got the Application ready for us to be able to issue it, despite my still being away on holiday.

If my personal practice had not been as thorough and as conscientious as it is, I think it is likely that I would have returned from holiday to find that we had already missed the deadline.

Whenever I think about this situation I find it hard to believe that this “coincidence” is purely accidental. This was the one opportunity in the whole of the last two months in which we could lose this case provided the paperwork was sent when it was, as explained above.

Furthermore it is odd that the less important Order of Mr Justice Supperstone’s was emailed but this much more important Order was only posted. Nor were we given any advance warning. I do not think I will ever be able to prove the attempted set up that seems to have happened here, but fortunately we have managed to keep the case on track by getting the Application in on time.

If my suspicions are right it is a very sad reflection on the state of “justice” in this country which has now become so politicised that we seem to have lost the “Rule of Law” which was the cornerstone of England’s hard won and hard fought ancient Constitution.

A further matter emerged when there was the easily made confusion between two Mr Justice Spencers. The signature on the Order looks like Mr Justice Martin Spencer, but it turns out on very close inspection of the documentation to be that of Mr Justice Robin Spencer aka Sir Robin Spencer.

Inspection of the Facebook profile and Twitter account of Mr Justice Martin Spencer revealed that he was an outspoken Remainer. As it was put in a legal analysis:-

18. On the said Twitter site appear the following comments by Mr Spencer QC (as he then was) (all dated 24.6.2016, the day the referendum result was announced), none of which have since been removed, all of which were publicly available on 27.6.2019 and all of which continued to be published by Martin Spencer J up to the later date. In chronological order:

(1) ‘If Europe disintegrates, with the UK as the catalyst, we will have betrayed our children and grandchildren.’

(2) This is not something we can undo in 3 or 4 years’ time as in a general election, it will affect generations.’

(3) We have taken leave of our senses, as a country. This was a time to stand together, untied with Europe in our beliefs and values.’

19. The implied meaning of the above tweets includes the statements that (in respect of each numbered tweet using the same sub-paragraphs) those voting and those political parties advocating Leave in the referendum:

(1) Are responsible:

(a) for betraying their children and grandchildren;

(b) for increasing the likelihood of the ‘disintegration’ of Europe;

(2) Have damaged the UK for generations (this is imputed from the fact that the second comment immediately followed the first); and

(3) Have, in particular, ‘taken leave of [their] senses’ and have betrayed the values that all should share.

21. On 6.7.2016, on the said FB site, the user (it is assumed Mr Spencer QC, as he then was) made the following comment, which remained publicly available to view and thereby published on 27.6.2019:

‘Apparently, since the referendum vote, support for staying in the EU has risen in Denmark from 59.8 % to 69 %. We appear to be a laughing stock in the rest of Europe. This is Der Spiegel’s verdict: ‘the result has “created new rifts: between old and young, London and the provinces, the English and the Scottish. In the end, further referenda may follow, with the result that the once-powerful UK could be transformed into a loose alliance of marginalised mini-states.” Quite.’

22. The implied meaning of the above comment was that those voting Leave or advocating such a vote have:

(1) Made the UK the laughing stock of Europe;

(2) Been responsible for creating the rifts set out;

(3) Increased the likelihood of the break-up of the UK into a loose alliance of marginalised mini-states, including England as an independent country;

And that:

(4) The emergence of England as an independent country would be an extremely negative outcome, were it ever to occur.

23. In respect of the implied meaning alleged at para 17 (3) above, the author reaches the conclusion that the break-up of the UK would be caused by rifts between (inter alia) England and Scotland; and went on to allege the emergence of ‘mini-states’. Although England has a population of around 55 million, the most logical meaning of this other to an ‘idiot in a hurry’, informed by the well-known fact that England voted Leave and Scotland did not, was that England would be one of those states.

24. The FB user, who appears to have been Mr Spencer QC (as he then was) also advertised the fact that he had signed an online Petition that said as follows:

‘We the undersigned call upon HM Government to implement a rule that if the remain or leave vote is less than 60% based a turnout less than 75% there should be another referendum.’

25. The implied meaning of the above statement, which (if the site is his) Mr Spencer QC endorsed and which, in his judicial office, he continues to endorse through its publication, is that the Referendum result, in which under 60 % of the population on a turnout under 75 % voted to Leave, was illegitimate and that the UK should therefore remain in the EU in spite of the Referendum result.

Although these comments cannot have any bearing on this case, they do however have a strong bearing on what is happening to our legal system in which we have a Blairite Judicial Appointments Commission which will only appoint Judges who can “demonstrate a life time’s commitment to Equality and Diversity” and are therefore ideologically only of the multiculturalist Left and therefore almost all Remainers.

This system of appointment clearly needs to be changed to ensure that people are only appointed as Judges as they are the best lawyers and their politics is ignored. If the British Political Establishment are displaced then we can expect the terms of reference to the Judicial Appointments Commission to be changed after each General Election and appointments to be made only of those who are supporters of whichever party is then in power!

FACEBOOK AGAIN REVEALS ITS PRO-REMAIN POLITICAL BIAS

Some time on Thursday last week Facebook “Disabled” my “Personal Profile”.

The first I knew about this was when I tried to sign on to check if I had had any messages. I was then told that the account had been “Disabled”.

Here is exactly what the text said:-

“Your account has been disabled

For more information, or if you think your account was disabled by mistake visit the Help Centre”

For more information about our policies please review the Facebook Community Standards. If you think your account was disabled by mistake please contact us.”

I of course thought that that must be wrong and therefore went to their next page which said:-

“Why was my account disabled?

Your account has been disabled for violating Facebook’s Statement of Rights and Responsibilities.

Our Policies

One of Facebook’s main priorities is the comfort and safety of our members. The following are not allowed on Facebook:

· Support for a violent and/or criminal organization or group

· Credible threats to harm others or the promotion of self-destructive behaviour

· Targeting other individuals on the site

· Hate speech or singling people out based on race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability or disease

· Graphic content including sadistic displays of violence against people or animals and depictions of sexual assault

· Selling recreational or pharmaceutical drugs

Learn More

After looking carefully at that page I was able to see that there was some element of an appeal process, so I clicked onto the link they provided and got a page which only told me to send them a PDF of my passport or other ID.

So all I was able to do in response to my Profile being “Disabled” was to send them an image of my passport to confirm my identity!

On Friday I received a response saying that the ID Team couldn’t help with any appeal!

Which is absolutely hopeless.

At that point I thought Facebook’s procedures for appeals were completely inadequate and didn’t even remotely approach the basic “Rules of Natural Justice”. I therefore sent off an email to every Facebook email address that I had got.

Here is my email to them:-

“Dear Sir

I have tried to log in to my above profile and your system asked me to submit an ID check. There is no proper detail of any reason why this happened nor a clear appeal process just some generic items which can’t be relevant to me.

I am currently a candidate standing in an election here in England and I have already done your double identity check for political figures and advertising so you should be aware.

Here in the UK it is a crime under the Representation Of the People Acts for candidates to be slandered so I would politely ask you to sort this out and restore my profile or I shall get the police involved tomorrow.”

In reply I did get this answer:-

“Hi Robin,

Thanks for your report. We’ll review the information you provided and get back to you when we have an update on your report.

In the meantime, you can review our Community Standards to learn more bout what is and isn’t allowed on Facebook:

https://www.facebook.com/communitystandards?ref=cr

We appreciate your patience.

View updates from your Support Inbox: https://fb.me/1FCup0kANUMY5ok

Thanks,

The Facebook Team

At the time of writing this blog, I have not received any substantive response explaining either why they have done it or what they are going to do about it.

I, in common with many other EU Parliamentary candidates, did receive a visit from the police advising us on security and so have received contact details of the officer who is responsible for dealing with political crime. I have therefore started the process of reporting this matter to the police, since Facebook would seem to interfering in an election which could well amount to a criminal offence.

The police have acknowledged that they are now investigating Facebook’s actions.

I shall wait and see what the police will do about this before considering my civil options against Facebook, which at the least would seem to amount to a breach of contract and may well be at least an implicit defamation in wrongfully disabling my profile.

Facebook’s actions call into question what exactly this is all about.

I should explain that I have had my profile up on Facebook for at least 10 years (although I now of course cannot check exactly when I signed up!). In all that time I have not been banned or warned of a ban for anything that I have ever posted up. That is quite simply because I have not posted up anything that is even remotely against Facebook’s so called “Community Values”, nor even of questionable taste.

Furthermore I would say that as far as my profile is concerned I had not actually posted up anything new on my profile for quite a few days. Also I hadn’t posted up anything else, other than updates about the case which I as a solicitor and Chairman of the English Democrats, am bringing against the Government (to get a Declaration that, as a result of our Notice expiring, we were Out on the 29^th March!).

In addition Facebook is well aware of my being involved in politics as a few months ago they had written to me to ask for me to sign up to what they describe as something along the lines of ‘double identity verification’ for political figures which would then allow me to place political adverts. I had done this and I had also placed a few political adverts.

So the situation is my profile has been disabled and this has happened in the context where I have only been posting information up about the case.

I had not even posted up very much about the English Democrats and myself having stood in the EU elections. That is of course because the primary reason for standing in the EU elections was to publicise the case.

Since what I am aiming to achieve with the case is that a Declaration that were actually already out and that therefore these elections are null and void.

In response to this activity Facebook has disabled my profile without notice and without giving any explanation as to why they have behaved in this way and without providing a proper appeals process!

Could this have anything to do with Facebook’s internationalist/globalist agenda and of their appointment as a Director of Nick Clegg of the “Bollocks to Brexit” Liberal Democrats?

Go figure!

BULLSEYE! OUR OPPONENTS RAVE AGAINST OUR LEAFLET!

One of the bonuses of standing in EU Elections (of which the current one will hopefully be the last!) has been that you are able to get a free mailshot of your “Region”.

The snag is that the Royal Mail has very strict rules on how the leaflets are to be presented, which makes them a lot more expensive than leaflets usually are!

Consequently, although we have had a very generous response for our appeal for funds for leaflets from our members and supporters, we are not yet a big enough party to have been able to leaflet all four of the EU “Regions” which we have stood in.

Even for the two “Regions” that we are not able to leaflet it is still a worthwhile exercise to stand, as we have had many radio and television interviews which we would not have otherwise had. We also have had an entry in many of the local papers. All this has enabled us to get the message out about our Party and also about English nationalism and most especially about our Judicial Review case.

In those two “Regions” that we have been able to manage to leaflet, the Eastern Region and the Yorkshire and the Humber Region, we have put out what I think is a very good leaflet. Which we have been able to use to get around the mainstream media blockade and get something mentioning our case onto every single doormat in each of those “Regions”.

Above is the image of the leaflet. If you click on it, you should be able to see the whole leaflet.

I am hoping that the leaflet will continue one of the good effects of the Brexit vote, which has been to reveal to millions of English people just how biased and dishonest our mainstream media actual are. Their refusal to publish actual news and their focus on only pushing their internationalist/globalist agenda and the interests of their owners and of Big Business and of their Advertisers has been blatant!

An amusing by-product of the leaflet’s delivery has been to get emails, not only of support and of people donating and joining us, but also emails from our opponents.

I thought I would give you a selection of the sort of ravings that the opponents of our moderate English nationalism have sent us. Enjoy!

Mr Daniel M:-

“First of all I would like to thank you for the leaflet I didn’t want, nor did I ask for.

I must admit it has done it’s job, never before have I wanted to contact a political party immediately upon reading such a docket of information.

As a proud Englishman myself I take pride in knowing I can put this leaflet to good use in wiping my colostomy bag with it after I have emptied it’s contents down the toilet.

Ironically I was put off of voting recently but your leaflet has inspired me to vote on the 23rd May, but don’t get too ‘Proud’ of yourselves as it won’t be for you. I would rather void my ballot paper (much like my colostomy bag), than vote for your version of ‘English and Proud’

Many thanks for inspiring me to vote again”

Mr Tom H:-

“I read your leaflet with interest but have some questions regarding some of the content.

You wish to make St George’s Day a public holiday but St George was born to Greek parents in Turkey. He is also a patron saint in Portugal and some regions of Spain. That doesn’t seem very English!

You also wish to fly the flag of a man of mixed European descent from public buildings!

Your leaflet also features the ‘3 Lions’ but only one of the lions represents England. The other two represent Normandy and Aquitaine which are both regions of France.

Apparently Richard 1st first used the three lions but he did not speak English as his first language, rather French, and he spent very little of his adult life in England. Both of his parents were French.

Surely this shows us that the emblems you are using to promote Englishness are not English but European!

This leaves me confused as to what ‘English values, history and culture’ mean to your party. It would be great to get some clarity.”

From Heather:-

“I’’ve seen a few copies of your leaflet that friends of mine have received by post in light of the upcoming EU elections. Whilst I haven’t received a leaflet myself, I have read it, as friends have been kind enough to share it on social media with me.

I wondered if you could tell me where I stand with this party?

I was born in Scotland, and lived there until I was 19. I then moved to Cardiff, where I studied at Cardiff University. In 2014 I met my now husband, and we now live in England together. We both work in England. I was a teacher for 2.5 years, and he works for the NHS. He is Welsh, and lived in Wales until he went to university in England.

I would hate to be a cause of concern for this party, but at the same time, I feel like the leaflet makes my husband and I are made to feel unwelcome, as we are not English. I am very proud to be a European and British citizen and will continue to fight for my right to be called both.

Perhaps your next leaflet could be reworded to remove ambiguity – surely all people who are able to contribute to the economy and community are welcome in our wonderful country?”

From Natty N:-

“In getting pretty fed up of bigoted people shoving their disgusting leaflets through my door. Especially when it’s specifically states not to post junk mail.

That’s exactly what your leaflet is. Junk.

You racist cunts.

Not a single brain cell between you!

You’re so busy hating strangers that have a different ethnicity to you, that you can’t even get your facts straight about the EU.

You’re a bunch of fuck wits who haven’t the first clue about the world, or how it works.

All you care about is hating others and blaming them for your crap lives.

Maybe look a little closer to home.

Perhaps you’re just useless and that’s why your lives suck.

Incitement to hate to a serious offence, and that’s what you’re doing.

It’s fucking pathetic.

English and proud!?

Fuck off. We’re all earthlings.

Bring English is nothing to be proud of. We’re responsible for so many atrocities. Why be proud of that?

You’re hateful arse holes and you can, quite literally, shove your racist paraphernalia up your backsides. Or better yet, down your throat. Maybe that’d stop you spouting such tripe.

Go fuck yourselves.”

From Julie W:-

“I read with disgust the leaflet posted through my door this morning. I abhor it’s thinly veiled racism. Please do not ever send me any literature again.”

From Helen:-

“Please do not pollute my doormat with your racist literature”

From Adam H:-

“Please do not send your flyers to my house again! I do not agree with anything your party is saying. In my opinion you are all terrible terrible racist xenophobic people.”

From Tina C:-

“I received your racist leaflet today through the post. I would be grateful if you would not send me your literature as I do not want to be associated with racist like you.”

From Sylvia A:-

“Do not just assume the person behind the door you post your degrading leaflets though to are English. I am a proud English/Spanish woman how dare you!!! I don’t force my opinions on you, don’t force your opinions through my letterbox invading my privacy.”

From ‘A normal person’:-

“You Nazi cockwomble.”

From Liz P:-

“I find your leaflets, your attitudes and your values totally unacceptable, do not contact me in any way. I am contacting the electoral commission as in my opinion your leaflet contains many untruths.”

From Gemma T:-

“I’d like to make a complaint about the person who put your leaflet through my door. Please can you direct me as to where I need to send this?”

From Mosteve:-

“After having one of your Election Communication leaflets put through my letter box I am in a quandary. The reason for this being that my Paternal Grandfather was Egyptian, my Grandmother Welsh, and my mother a Londoner. I am a Londoner married to a Scottish lady. The question therefore is, how English am I!???”

From: Mr J:-

“Just had your leaflet delivered. Just remember that not only English people live in England!! Suggest the party name should reflect that. A PROUD Welshman living in England.”

From Mark F:-

“If you put material as offensive as your latest ‘election brochure’ through my mail slot again, and expose my family and children to this kind of vile rubbish, I will call the police and have you arrested for contravening the Obscene Publications Act. I am English and white and proud… proud to reject moronic views like yours!! In future, keep them to yourselves …………”

From Vanessa S:-

“Don’t send your crap through my door. You are not a party, you don’t represent a majority view point. Please stop. Don’t waste paper on your racist slander.”

From James S:-

“Thanks for your meaningless little poster-note that came through my door. Unemployment is at its lowest level in years. English people can get whatever job they desire and or are qualified for, other issues such as education, inequality and discrimination can lead (and are far more important) to people being excluded from the workforce. From my experience we learnt a great deal of “English” history at my school, but given the fact that history is the record of English interactions with other foreign powers, it would be almost impossible to separate history from the rest of the world. ‘Flying the English flag from all our public buildings is the least educated thing that came through my door today and that does nothing for anyone, doesn’t really qualify as a top priority does it? Given the rising levels of inequality and poverty in this country – none of which was mentioned of your flyer – flying English flags from every public building seems an inconsequential thing to put as one of the main things on the flyer. It saddens me that your rhetoric and narratives are so hostile to lots of people that live in England stirring up hatred, animosity and intolerance, you should be ashamed of yourselves.

I suggest that you ensure that you base your ideals on facts rather than emotion.

Thanks anyway for the kindling, not sure how well it’s going to burn though.”

Some of the leaflets have been sent back with rude messages on them, the most amusing of which was sent back with a post-it sticker on it saying:- “This fascist shit came through my letterbox today. I am returning it to you to shove it up your arse where it belongs”. Funnily enough the individual not only paid for the postage, but on an envelope appropriately stamped with “Mental Health Awareness Week”!

BULLSEYE! OUR OPPONENTS RAVE AGAINST OUR LEAFLET!

One of the bonuses of standing in EU Elections (of which the current one will hopefully be the last!) has been that you are able to get a free mailshot of your “Region”.

The snag is that the Royal Mail has very strict rules on how the leaflets are to be presented, which makes them a lot more expensive than leaflets usually are!

Above is the image of the leaflet. If you click on it, you should be able to see the whole leaflet.

An amusing by-product of the leaflet’s delivery has been to get emails, not only of support and of people donating and joining us, but also emails from our opponents.

I thought I would give you a selection of the sort of ravings that the opponents of our moderate English nationalism have sent us. Enjoy!

Mr Daniel M:-

“First of all I would like to thank you for the leaflet I didn’t want, nor did I ask for.

I must admit it has done it’s job, never before have I wanted to contact a political party immediately upon reading such a docket of information.

As a proud Englishman myself I take pride in knowing I can put this leaflet to good use in wiping my colostomy bag with it after I have emptied it’s contents down the toilet.

Many thanks for inspiring me to vote again”

Mr Tom H:-

“I read your leaflet with interest but have some questions regarding some of the content.

You also wish to fly the flag of a man of mixed European descent from public buildings!

Your leaflet also features the ‘3 Lions’ but only one of the lions represents England. The other two represent Normandy and Aquitaine which are both regions of France.

Surely this shows us that the emblems you are using to promote Englishness are not English but European!

This leaves me confused as to what ‘English values, history and culture’ mean to your party. It would be great to get some clarity.”

From Heather:-

I wondered if you could tell me where I stand with this party?

Perhaps your next leaflet could be reworded to remove ambiguity – surely all people who are able to contribute to the economy and community are welcome in our wonderful country?”

From Natty N:-

“In getting pretty fed up of bigoted people shoving their disgusting leaflets through my door. Especially when it’s specifically states not to post junk mail.

That’s exactly what your leaflet is. Junk.

You racist cunts.

Not a single brain cell between you!

You’re so busy hating strangers that have a different ethnicity to you, that you can’t even get your facts straight about the EU.

You’re a bunch of fuck wits who haven’t the first clue about the world, or how it works.

All you care about is hating others and blaming them for your crap lives.

Maybe look a little closer to home.

Perhaps you’re just useless and that’s why your lives suck.

Incitement to hate to a serious offence, and that’s what you’re doing.

It’s fucking pathetic.

English and proud!?

Fuck off. We’re all earthlings.

Bring English is nothing to be proud of. We’re responsible for so many atrocities. Why be proud of that?

You’re hateful arse holes and you can, quite literally, shove your racist paraphernalia up your backsides. Or better yet, down your throat. Maybe that’d stop you spouting such tripe.

Go fuck yourselves.”

From Julie W:-

“I read with disgust the leaflet posted through my door this morning. I abhor it’s thinly veiled racism. Please do not ever send me any literature again.”

From Helen:-

“Please do not pollute my doormat with your racist literature”

From Adam H:-

“Please do not send your flyers to my house again! I do not agree with anything your party is saying. In my opinion you are all terrible terrible racist xenophobic people.”

From Tina C:-

“I received your racist leaflet today through the post. I would be grateful if you would not send me your literature as I do not want to be associated with racist like you.”

From Sylvia A:-

From ‘A normal person’:-

“You Nazi cockwomble.”

From Liz P:-

From Gemma T:-

“I’d like to make a complaint about the person who put your leaflet through my door. Please can you direct me as to where I need to send this?”

From Mosteve:-

From: Mr J:-

“Just had your leaflet delivered. Just remember that not only English people live in England!! Suggest the party name should reflect that. A PROUD Welshman living in England.”

From Mark F:-

From Vanessa S:-

“Don’t send your crap through my door. You are not a party, you don’t represent a majority view point. Please stop. Don’t waste paper on your racist slander.”

From James S:-

I suggest that you ensure that you base your ideals on facts rather than emotion.

Thanks anyway for the kindling, not sure how well it’s going to burn though.”

Our counter to the UK Government’s Defence; English Democrats – v – The Prime Minister – Case No. CO/1322/2019

Our counter to the UK Government’s Defence in The Queen on the application of the English Democrats – v – The Prime Minister and the Secretary of State for Exiting the European Union – Case No. CO/1322/2019

Here is our barrister’s response to the Government’s efforts to undermine our case:-

IN THE HIGH COURT OF JUSTICE Claim No. CO/1322/2019

QUEEN’S BENCH DIVISION

THE ADMINISTRATIVE COURT

B E T W E E N :

THE QUEEN

(On the application of THE ENGLISH DEMOCRATS)

Claimant

– and –

THE PRIME MINISTER

First Defendant

– and –

THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION

Second Defendant

______________________________________________________

CLAIMANT’S REPLY TO THE DEFENDANTS’

SUMMARY GROUNDS OF RESISTANCE

_____________________________________________________

Defined terms are as used in the Claimant’s Written Submissions

INTRODUCTION

1 The Defendants’ Summary Grounds of Resistance (‘the SGR’) seek to deprive the Claimant of the right to an oral hearing through a declaration that the Grounds are totally without merit (CPR r. 54.12 (7)). Such a declaration would be wrong as this claim is at least ‘highly arguable’, as a retired lord justice considers.[1] It is a claim which ‘on a quick perusal… discloses what might on further consideration turn out to be an arguable case…’ and should thereby be given permission. ‘The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application’ (R v Inland Revenue Commissioners ex parte NFSESB Ltd [1982] A.C. 617 at p 642, per Lord Diplock).

2 This is not an attempt to engage in politics by another means but a question of whether the Crown may, without primary legislation and potentially indefinitely, extend the application of EU law, the obligations of membership and the fetter it places on Parliamentary sovereignty. It is a claim that ‘merits full investigation at a full oral hearing’ with all the parties represented (R v Legal Aid Board ex parte Hughes (1992) 5 Admin. L. Rep. 623); and it is far from being a ‘misguided’ or ‘trivial’ (NFSESB)

3 The Court will also be alive to the distinction between cases that are merely ‘unarguable’ and those that are also ‘totally without merit’ and so ‘bound to fail’, set out in Wasif v Secretary of State ([2016] All ER (D) 96 (Feb)) at paras 15 and 17 (3):

… cases in which the judge considering an application for permission… can see no rational basis on which the claim could succeed… are in our view…“bound to fail” (or “hopeless”)… But… the claimant [may] identif[y] a rational argument in support of his claim [which] the judge is confident… taking the case at its highest, ..is wrong… On this approach, even though the claim might be said to be “arguable”… the prospect of it succeeding ceases to be “realistic”, if the judge feels able confidently to reject the claimant’s arguments…

…an oral renewal hearing… is.. an opportunity for the claimant to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers… The points in question may not always have been anticipated or addressed in the grounds and skeleton argument [and] [t]he judge should only certify the application as TWM if satisfied that… a hearing could not serve such a purpose; the claimant should get the benefit of any real doubt.

4 The Defendants’ reliance on the disruptive consequences of the UK being found already to have withdrawn from the European Union and ‘all the recent events [and] consideration of the question by Parliament’ since the extension challenged (SGR para 1) have no bearing on whether it is lawful. In the words of Lord Denning, “… even if chaos should result [it is not conceded that it would], still the law must be obeyed” (Bradbury v London Borough of Enfield (1967) 3 ER 434, (1967) 1 WLR 1311).

5 Moreover, the Defendants have failed to contest any of the Claimant’s submissions in pre-action correspondence,[2]having been given the opportunity to do so.

6 The Court should take into account the effect of removing the right to oral consideration of a claim of such constitutional importance through one judge considering only arguments made on paper. It is only because of the stark consequences of such a decision that they are filed.

SUBSTANCE OF THE RESPONSE TO THE CLAIM

7 Para 17 of the SGR assumes the existence of a prerogative power to agree extensions of time under A50.3. Yet, as there was no prerogative power to notify (R (Miller) v Secretary of State [2017] AC 61) how can there have been a pre-existing treaty making prerogative to vary the period determined by notification? (See the Claimant’s Submissions paras 40-50.)

8 The Defendants rely on the ‘detailed scheme’ of ‘Parliamentary control’ of approval of any withdrawal agreement (SGR para 10 (d)). Yet there is no such control over applications for and agreements to extensions of the A50 period in the 2017 and 2018 Acts. As outlined in the Claimant’s Submissions (paras 34/35), regulations made under s 20 (3) and (4) have no bearing on the prime minister’s power to agree to an extension of the A50 period in EU law. They may be made only afteran extension has been agreed between HMG acting ‘on behalf of’ the UK and the European Council: something unchallenged in the SGR (where HMG’s actions on the international plane are accepted to be the ‘target’ (para 2 (a)). The affirmative resolution procedure (para 14 of the Sch 7 to the 2018 Act, cited in SGR para 10 (c)) is irrelevant: the date on which the Treaties are to cease to apply must already have been changed before Parliament may vote on the resolution.

9 While the regulations may only be made after an extension has been finalised, it does not follow that the 2018 Act ‘presupposes’ that such a prerogative power exists (SGR para 19 (a)). Even if it did, such a legislative supposition could not be determinative of whether such a power exists: prerogative powers either exist or they do not. Moreover, Parliament may not grant a statutory power to another body by general or ambiguous words (R v Secretary of State ex p Simms [2000] 2 AC 539; Ahmed v HM Treasury [2010] UKSC 2); and ‘Henry VIII’ orders such as those authorised by s 20 (3) and (4) must be construed narrowly (see the Claimant’s Submissions para 38).

10 The EU (Withdrawal) Act 2019 (‘the 2019 Act’) on which the Defendants rely (SGR paras 13 and 20) is irrelevant as it can have no bearing on the lawfulness of a purported prerogative act before it became law. As with the 2018 Act, a ‘legislative supposition’ is not determinative of whether a prerogative power exists and cannot create a statutory power.

11 At para 21 of the SGR, the Defendants fail to engage with the Claimant’s submission that an extension – which may be requested an indeterminate number of times and may be agreed for an indefinite period – does change legislation, create offences and raise supply (see the Claimant’s Submissions paras 40-50). The 2017 Act created a statutory power to notify which would lead inexorably to the end of the UK’s EU membership,[3]the curtailment of Parliamentary sovereignty and the continuance of EU law, ending two years after notification. The ability of the Crown to agree to a withdrawal agreement is an inapt comparison: an agreement made before that period ends can only have accelerated the disapplication of the rights and obligations of EU membership. It is at least arguable that the prerogative cannot be used to extend those obligations and liabilities; and it is close to unarguable that no statutory power was created to do so (which it is conceded is not the Defendants’ case).

12 Alternatively, an extension of the A50 period would frustrate the legislative intentions of Parliament expressed through the 2017 and 2018 Acts. The Defendants concede that the 2017 Act provided only a power to notify (para 22 (a)); the definition of exit day is irrelevant (see above); and no reliance is placed by the Claimant on the anticipated repeal of the 1972 Act (SGR para 22 (c)) – indeed, the Claimant’s submissions specifically accept that s 1 of the 2018 Act is not in force (para 12) and consider the consequence of the Treaties ceasing to apply before its repeal (paras 70-72).

13 It is noted that the Defendants do not challenge the Claimant’s analysis that a request for or agreement to an extension of the A50 period can have no effect in EU law unless the agreement is made ‘on behalf of the Member State’ in accordance with that state’s constitutional arrangements (the Claimant’s Submissions, paras 60-68).

AFTERWORD

14 The order of Sir Ross Cranston (who, in fairness, had not considered the submissions in this case) does not assist the Defendants. Not only is his decision obiter (being made on grounds that the Senior District Judge had no jurisdiction to consider the Exit Day Regulations) it is, with respect, also based on the false premise – one not even relied upon by the Defendants – that s 20 (3) and (4) of the 2018 Act and the Exit Day Regulations have any bearing on the lawfulness of the agreement to extend the A50 period. It is of course understood that it is difficult to make decisions on complex matters of law without oral argument.

15 The refusal of the Defendants even to concede standing is surprising and strikingly defensive. That the Claimant is a political party cannot deprive it of standing. Their imputed motives for the claim are particularly unsuited for consideration at permission stage, aside from being irrelevant; and they are quite clearly a body made up of individuals, most of whom would each have standing to challenge the unlawful use of the prerogative in these circumstances. (See Claimant’s Submissions, paras 73-76.)

16 The Court is asked to take judicial notice of the fact that the peremptory treatment of the Claimant’s Submissions is similar to that of HMG in the Detailed Grounds of Resistance in Miller (attached at Exhibit 1). In those grounds HMG asserted that:

(1) The claim was non-justiciable (paras 5 (3) and 13-18);

(2) The relief claimed was ‘constitutionally impermissible’ (paras 5 (4) and 19-23);

(3) The relief would ‘trespass.. on proceedings in Parliament’ (para 21); and

(4) It was ‘crystal clear’ that the Prerogative could be exercised to notify under A50 (para 26).

Claimants whose cases are asserted to be obviously flawed can eventually persuade the Supreme Court that they are right; and the assertiveness with which a submission is put has no correlation to the likelihood that it is correct.

23^rd April, 2019

FRANCIS HOAR

Field Court Chambers,

5 Field Court,

Gray’s Inn,

London WC1R 5EF

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

THE ADMINISTRATIVE COURT

Claim No. CO/1322/2019

B E T W E E N :

THE QUEEN

(On the application of THE ENGLISH DEMOCRATS)

Claimant

– and –

THE PRIME MINISTER

First Defendant

– and –

THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION

Second Defendant

_____________________________________

CLAIMANT’S REPLY TO THE DEFENDANTS’ SUMMARY GROUNDS OF RESISTANCE

_____________________________________

Francis Hoar

Field Court Chambers,

5 Field Court,

Gray’s Inn,

London WC1R 5EF

Robin Tilbrook

Tilbrooks Solicitors

Quires Green

Willingale

Essex

CM5 0QP

Telephone: 01277 896 000

[1] Sir Richard Aikens: see para 77 of the Claimant’s submissions.

[2]All of which is exhibited to the Grounds.

[3] And, at the time it was enacted, it was considered (and agreed by all counsel in Miller), that notification was irrevocable, the CJEU only later deciding that it was not (Wightman v Secretary of State ((2018) C-621/18).

UK Government’s Lawyers argue against our claim; English Democrats – v – The Prime Minister – Case No. CO/1322/2019

The UK Government’s Lawyers argue against our claim in The Queen on the application of the English Democrats – v – The Prime Minister and the Secretary of State for Exiting the European Union – Case No. CO/1322/2019

Here is the Government’s defence to our claim that the UK is Out of the EU.

It is drafted by their top man, Sir James Eadie QC.

Sir James was also the same barrister who went so far over the top as to claim, in his Grounds of Resistance in the Gina Miller case, that it would be unconstitutional for the Court to even consider her claim!

Needless to say that approach failed at every hearing of that case!

Here is his effort to attack our claim:-

IN THE HIGH COURT CO/1322/2019
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
BETWEEN:
THE QUEEN
(on the application of)
THE ENGLISH DEMOCRATS
Claimant
-and-
(1) THE PRIME MINISTER
(2) SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
Defendants
__________________________________________________________

SUMMARY GROUNDS OF RESISTANCE

__________________________________________________________

INTRODUCTION

1. The Claimant invites the Court to declare that the UK’s withdrawal from membership of the EU took effect on 29 March 2019. Despite all the recent events, and all of the consideration of the question by Parliament, and despite the extensions agreed between the EU and the UK, the Court is thus invited to declare that Brexit has already happened. If the Claimant is right, the UK would have withdrawn from the EU by accident, directly contrary to the evident intention and belief of both Parliament (which has been debating and legislating in vain in the meantime) and the other Member States of the EU, with the European Communities Act 1972 remaining in force and without the necessary legislation to address withdrawal (particularly on a ‘no deal’ basis) having been brought into force. That would be a startling legal position indeed.

2. The target of the claim is the extensions of time agreed between the UK and the European Council under Article 50(3) of the Treaty on European Union (“TEU”). It is submitted that the claim is hopeless:

a. It is clear that there was power to seek and agree those extensions in the exercise of the Government’s prerogative power. The various statutory schemes relating to the withdrawal of the UK from the EU are premised upon, and expressly recognise, the continued power of the Government to seek and to agree extensions of time in relation to withdrawal under Article 50(3) TEU.

b. Parliament has acted on the basis of those lawful extensions and given effect to the extension of the withdrawal date beyond 29 March 2019. The date and time of withdrawal in domestic law was amended by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 (“the Exit Day Regulations”) and subsequently by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 (“the Exit Day No. 2 Regulations”). Those Regulations were made under, and as contemplated by, s.20 of the European Union (Withdrawal) Act 2018 (“the 2018 Act”).

3. This is therefore a further Brexit-related claim through which the Court is invited to engage in politics by another means: see the observations and citations in R (Wilson) v The Prime Minister [2019] EWCA Civ 304 at §56 per Hickinbottom LJ. The Court is invited to refuse permission, to certify the claim as totally without merit under CPR rule 23.12, and to award the Government their Mount Cook costs.

THE LEGAL CONTEXT

4. The process by which a Member State of the EU may withdraw from membership of
the EU is regulated by Article 50 TEU, which provides:

“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

5. The European Communities Act 1972 (“the 1972 Act”) was enacted by Parliament to give effect to the UK’s membership of the EU generally; and to give effect to all “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties” (s.2(1)). The 1972 Act remains in force.

6. Section 1 of the European Union Referendum Act 2015 (“the 2015 Act”) provided for a referendum on the question whether the UK should leave or remain a member of the EU. On 23 June 2016, it was decided by a majority of those who voted in the Referendum that the UK should leave the EU.

7. On 24 January 2017, the Supreme Court decided that primary legislation was required in order to authorise a notification under Article 50(2): see R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61 (“Miller”).

8. Subsequently, Parliament passed the European Union (Notification of Withdrawal) Act 2017 (“the 2017 Act”). Section 1(1) provides: “The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.” This therefore provided the requisite legislative authority for the Prime Minister to notify the intention of the UK to withdraw from the EU under Article 50(2).

9. On 29 March 2017, the Prime Minister formally notified the EU of the UK’s intention to withdraw under Art 50(2) TEU. The European Council accepted the notification.

10. On 26 June 2018, the European Union (Withdrawal) Act 2018 was enacted. The 2018 Act makes provision for the repeal of the 1972 Act and for the retention in domestic law of, in broad terms, existing applicable EU law following withdrawal.

a. Section 1 provides that the 1972 Act is repealed “on exit day”. Section 1 is not yet in force.

b. Section 20 defines “exit day”. As enacted, it provided that:

“(1) …“exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2)
to (5))…

(2) In this Act references to before, after or on exit day, or to beginning with exit day, are to be read as references to before, after or at 11.00 p.m. on 29 March 2019 or (as the case may be) to beginning with 11.00 p.m. on that day.

(3) Subsection (4) applies if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1).

(4) A Minister of the Crown may by regulations—
(a) amend the definition of “exit day” in subsection (1) to ensure that the
day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and
(b) amend subsection (2) in consequence of any such amendment. (5) In subsections (3) and (4) “the Treaties” means the Treaty on European Union and the Treaty on the Functioning of the European Union.”

c. §14 of Schedule 7 to the 2018 Act (as enacted) expressly prescribed that any regulations made under s.20(4) to amend the definition of “exit day” were to be subject to the affirmative resolution procedure.

d. Section 13 of the 2018 Act prescribed a detailed system of Parliamentary control of approval of any withdrawal agreement agreed between the Government and the EU under Articles 50(2) TEU. In addition, under s.13, a withdrawal agreement cannot be ratified until an Act of Parliament has been passed making provision for the implementation of the withdrawal agreement.

11. Following a vote of the House of Commons on 14 March 2019 in favour of seeking an extension of the withdrawal period, the Government wrote to the President of the European Council on 20 March 2019 seeking an extension until 30 June 2019. On 21 March 2019, the Council agreed to offer an extension until 22 May 2019 provided that the withdrawal agreement was approved by the House of Commons before 29 March 2019, or to 12 April 2019 otherwise. On 22 March 2019, the Government agreed the extension offered by the Council. The terms of the formal agreement under Article 50(3) TEU are set out in European Council Decision (EU) 2019/476 of 29 March 2019 [2019] OJ L80 I/1 (“the Extension Agreement”).

12. On 27 March 2019, the Government laid before both Houses of Parliament draft Regulations under s.20(4) of the 2018 Act to amend the definition of “exit day” in accordance with the Extension Agreement reached on 22 March 2019. In accordance with §14 of Schedule 7, the Regulations were approved by resolutions of both Houses of Parliament that day. The Exit Day Regulations were made on 28 March 2019 and came immediately into force. Regulation 2 amended ss.20(1) and (2) of the 2018 Act in accordance with the terms of the Extension Agreement.

13. Shortly before the expiry of the Extension Agreement on 12 April 2019, Parliament enacted the European Union (Withdrawal) Act 2019 (“the 2019 Act”). Coming into force on 8 April 2019, the long title of the 2019 Act is “to make provision in connection with the period for negotiations for withdrawing from the European Union”.

a. The effect of s.1 of the 2019 Act was to require the Government immediately to introduce into the House of Commons a motion seeking approval for the Government to request a further extension under Article 50(3) TEU to a date agreed by the House of Commons: ss.1(1)-(3). Sections 1(4)-(5) then imposed a duty on the Government to seek the extension in the terms approved by the House of Commons. Such a motion was introduced on 9 April 2019, to seek an extension until 30 June 2019, and was passed unamended. The Government then sought an extension in accordance with s.1(4) of the 2019 Act.

b. Significantly, s.1(6) of the 2019 Act provides:
“Nothing in this section prevents a Minister of the Crown from seeking, or agreeing to, an extension of the period specified in Article 50(3) of the Treaty on European Union otherwise than in accordance with this section provided that the extension cannot end earlier than 22 May 2019.”
Thus, save for the requirement that no extension which ends before 22 May 2019 be agreed, the power of the Government to agree an extension under Article 50(3) of any date (whether or not that requested by the UK under s.1(4)), and to seek any other extension, is expressly preserved in s.1(6) of the 2019 Act.

c. Section 2 of the 2019 Act amended §14 of Schedule 7 to the 2018 Act, so as to alter the process by which any further regulations amending the definition of “exit day” to the negative resolution procedure.

14. On 10 April 2019, the Government agreed with the European Council a further extension under Article 50(3) until 31 October 2019, unless elections to the European Parliament are not held by the UK in which case the extension shall cease to apply on 31 May 2019 (“the Further Extension Agreement”). The terms of the formal agreement are set out in European Council (EU) Decision 2019/584 of 11 April 2019 [2019] OJL101/1.

15. On 11 April 2019, the Government made the Exit Day No. 2 Regulations, which came immediately into force. Regulation 2 amended ss.20(1) and (2) of the 2018 Act in
accordance with the terms of the Further Extension Agreement.

RESPONSE TO THE CLAIM

16. The Government negotiates and enters into international agreements in the exercise of prerogative powers: i.e. the treaty and foreign relations prerogatives: see eg Miller at §§54-55.

17. The Claimant’s case is dependent upon the assertion that the statutory scheme set out above has displaced the Government’s prerogative powers to negotiate and agree extensions of time to the withdrawal period under Article 50(3) TEU. The short answer to that contention is that the statutory scheme says no such thing; on the contrary, each of the relevant pieces of primary legislation is fundamentally inconsistent with it.

18. The 2017 Act authorised the Government to notify the EU of the UK’s intention to withdraw. It did not purport to address when the UK would leave, or to control any power to agree extensions of time. By the express inclusion within s.1(1) of a reference to Article 50, Parliament was recognising and acknowledging that it was, necessarily, for the Government to exercise its powers in relation to the withdrawal process in accordance with Article 50, including extensions of time under Article 50(3).

19. So far as concerns the 2018 Act:

a. Section 20 as a whole presupposes that the prerogative power to seek and agree extensions exists. Thus, s.20(3) expressly recognises that an extension might be agreed between the UK and the EU under Article 50(3) TEU, and s.20(4) makes provision for the Government to amend the definition of “exit day” by regulations. Parliament did not purport to control or limit the prerogative power to agree such extensions under Article 50(3). Rather, Section 20(4) restricts the power to make regulations amending the definition of “exit day” to circumstances where an agreement under Article 50(3) has already been reached, in order that the definition be aligned with the date of withdrawal under the Treaties. It is therefore evidently premised upon Governmental exercise of the prerogative already having occurred.

b. Moreover, where Parliament did intend in the 2018 Act to control or limit the Government’s prerogative powers in relation to the Article 50 process it did so expressly. Section 13 has the effect of preventing the Government ratifying any withdrawal agreement with the EU before it has been approved by the House of Commons and primary legislation has been passed to implement the agreement. That operates as a direct fetter on the Government’s ordinary treaty prerogative to negotiate and agree a withdrawal agreement, under Article 50, departing from the ordinary preservation of that prerogative in s.20(4) and (8) of the Constitutional Reform and Governance Act 2010. The absence of any similar control on the power to agree an extension under Article 50(3) in the 2018 Act is conspicuous.

20. So far as concerns the 2019 Act:

a. Section 1(6) recognises and preserves, in terms, the Government’s power to ‘seek and agree’ extensions of time under Article 50(3). That is the sole purpose of that provision.

2b. To the limited extent that Parliament intended to control or limit that prerogative power in the 2019 Act, it did so in express terms (eg in ss.1(4)-(5)); and then went out of its way to make clear (in s.1(6)) that otherwise the prerogative powers are preserved.

21. There is no parallel or analogue with the situation in Miller. Unlike sending the notification of intention to withdraw under Article 50(2) – and on the assumption of irrevocability the Supreme Court proceeded upon – an extension of the UK’s period of membership of the EU preserves the existing legal position, including the rights and obligations of citizens, the sources and content of domestic law, and the constitutional arrangements of the UK for the period of the extension. It does not involve any constitutional or legal change, let alone one of the “major” or “fundamental” type which concerned the Supreme Court in Miller: at §§82-83. Where, as in this case, the exercise of the treaty prerogative does “not in any significant way alter domestic law”, including in relation to EU treaties and agreements, the Supreme Court accepted that the prerogative power existed: at §89, approving R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1994] QB 552 in this respect.

22. It is equally plain that an extension of the UK’s period of membership does not frustrate the purpose of any statutory provision:

a. An extension of time under Article 50(3) does not frustrate Parliament’s expressed intention in s.1(1) of the 2017 Act that the UK should withdraw from the EU. Parliament set no date by which that intention was to be effected: it provided only a power to notify under Article 50(2), which could be exercised at any time.

b. Section 20(1) of the 2018 Act, as enacted, gave a specific definition of “exit day” as 11.00pm on the 29 March 2019. However, that was evidently to reflect the fact that under the terms of Article 50 – given the date of the notification – the ordinary two year period would expire on 29 March 2019. In any event, and dispositively so far as this point is concerned, s.20 also made direct provision to enable and to regulate – in ss.20(3)-(4) and §14 of Schedule 7 – extensions of time which would alter the definition of “exit day”. It is therefore the Claimant’s position, that there is no power to agree an extension, which would frustrate the evident purposes of ss.20(3)-(4). The extension regulation powers would be denuded of any purpose or function. Parliament would have legislated in vain to permit regulations to be made to reflect an agreed extension of time under Article 50(3) if, as the Claimant asserts, only primary legislation could authorise such a step.

c. No assistance can be drawn from the anticipated repeal of the 1972 Act in section 1 of the 2018 Act. Section 1 is not in force, and the commencement of it was both tied in terms to the definition of “exit day” (as to which, see above)
and left by Parliament to be dealt with in regulations: s.25(4). The 1972 Act remains fully in force as an expression of Parliament’s continued intent. Any extension of time of the UK’s membership of the EU is wholly consistent with
the intention of Parliament as expressed in the 1972 Act. Again, it is the Claimant’s position which would frustrate the continued intention of Parliament by seeking to render the 1972 Act empty of effect without it having been repealed.

SIR JAMES EADIE QC
CHRISTOPHER KNIGHT

17 April 2019

WHAT THE MEDIA BLACKOUT TELLS US ABOUT THE MAINSTREAM MEDIA

Donald Trump and his Campaign Team famously developed the expression “Fake News” to comment on the left-liberal, blatant bias of the US mainstream media.

In this country I think the mainstream media are at least as biased as the US media.

For the last three years or more we have had wall to wall and utterly shameless and blatant Remainer bias from the BBC and all the other main broadcast channels on any topic relating to Brexit.

Charles Moore on last week’s Question Time brilliantly exposed the BBC’s and Question Time’s bias against Leavers, whilst the BBC’s Fiona Bruce desperately tried to shut him up!

The mainstream media’s bias however goes much further than disproportionate coverage to include outright censorship of any story which goes against their internationalist, left-liberal bias.

I think few stories illustrate this better than the coverage of our case.

The English Democrats are bringing a High Court case using the Judicial Review procedure to sue Theresa May and the Secretary of State for Exiting the European Union (Case No. CO/1322/2019). We have a strong case that, according to law, the United Kingdom left the European Union on the 29^th March at the expiry of our two year notice period which was given under Article 50 of the Lisbon Treaty.

This case is therefore the only realistic chance that we have of getting any real Brexit. The media are falling over themselves to report displacement activity that cannot make any difference. For example, as I write this, they are falling over themselves to report about Nigel Farage and his new Party. The safe fact for the Remain supporting media is that however many MEPs Farage’s Party wins it cannot make any difference whatsoever to whether we are in or out of the EU or on what terms! Misdirecting Leave support into that cul-de-sac is therefore useful for Remain.

I and numerous others whom I know of have tried very hard to get the mainstream media to report about the case, but with very little success.

This is of course also in stark contrast to the massive and persistent reporting of the much less important constitutional case brought by Gina Miller to require the Government to get an Act of Parliament to permit it to serve the Article 50 Notice. That case, as I am sure anybody who listened to any of the “news” output of the mainstream media, received literally massive coverage because the Remainers in the media thought that it might derail Brexit.

By contrast our case which may actually get a Declaration that we are already Out of the European Union has only had the Mail On-line do two items about it, both of which were top trending political news stories on-line.

I have been informed that those in charge of the Mail On-line were told by the Daily Mail’s new editor (who is a Remainer) that they were to let the story drop.

The Express On-line also began to cover the story, but again I understand they were told to drop the story by their new owners from the Mirror Group.

Apart from those two media outlets there has been, so far as I am aware, no other coverage at all.

Given the significance of this case I think we can draw some important conclusions from this treatment.

The first is that despite the claims of the mainstream media to report “News”, this claim is quite simply ‘fake news’. The so-called “News” which they report is subordinate to their propaganda objective of furthering their internationalist, left-liberal bias.

So, any of us that take our understanding of what is going on in the world from the mainstream media is therefore running a big risk that their awareness of news will be so tainted by this propaganda objective that their understanding may well be led into fundamental errors about what is going on.

This of course has important implications for political policy and decision making because our politicians seem to take much of their agenda from what appears in the mainstream media. No wonder they make such a mess of almost every decision that they are involved in!

Also no wonder so many people are misled into supporting displacement activity!

Another important point to consider is the effectiveness of social media. Despite not receiving any proper coverage by the mainstream media, we have still been able raise over £80,000 toward the case. That does enable us to carry on with the case with some confidence. However against that we have to set what happened with the Gina Miller case where the fake news mainstream media furore led to the funding of a case which cost over £1.2 million! Social Media therefore is helpful but does not fully compensate us for being completely cut out of the mainstream media reporting.

Last but not least, it also does need to be noted that the Remainer cartel politicians like Yvette Cooper and Tom Watson have been campaigning for social media access to be cut-off for all those who oppose the current British Political Establishment cartel.

Our window of potential opportunity on social media is therefore already being closed off, as the recent treatment of Tommy Robinson so vividly demonstrates!

This of course means that it is urgent to find ways to break through politically before the window of opportunity finally closes on us!

DECLARATION THAT THE UNITED KINGDOM LEFT THE EUROPEAN UNION ON 29TH MARCH

This is our PRESS RELEASE:-

ENGLISH DEMOCRATS – CLAIM FOR A DECLARATION THAT THE UNITED KINGDOM LEFT THE EUROPEAN UNION ON 29^TH MARCH 2019

On 2^nd April the English Democrats, the English nationalist political party, issued a judicial review claiming the Prime Minister could not lawfully agree to an extension to the period before the United Kingdom could leave the European Union under Article 50 of the Treaty on European Union. The Court is asked to declare that, because she had no such power, the UK automatically left the EU on 29^th March – the original ‘exit day’, two years after notification was made.

This challenge was to the extension offered by the EU on 27.3.2019 and accepted by the PM on 28^th March not to the additional extension the PM claimed to agree to today (11^th April).

There is a link below to the Submissions filed in support of the challenge. The Government is expected to reply by 17^th April.

The English Democrats’ case is that the PM has no statutory power to agree to an extension. The change to ‘exit day’, in a statutory instrument under the European Union Withdrawal Act 2018, can only be made if the Article 50 period has already been extended under international law. If the PM had no power to extend, Parliament could not lawfully make the statutory instrument.

The English Democrats rely on the Supreme Court decision in Miller v Secretary of State, which found that the government cannot change how and whether EU law applies to the UK by the Royal Prerogative. The PM could only notify under Article 50 under the EU (Notification of Withdrawal) Act 2017. The inevitable result was that the UK would leave the EU after two years, when EU law would cease to apply to the UK. Any extension would change the law by making EU law apply beyond that date, which the Act did not give the PM the power to do.

In addition, the English Democrats’ case (also relying on Miller) is that an agreement to extend the Article 50 period would frustrate the purpose of the 2017 and 2018 Acts; particularly as there is no restriction on the length of any potential extension and the number of extensions that may be requested – as the latest extension has shown.

The ‘Cooper-Letwin’ Act giving Parliament power over extension requests has no effect, as no further extension could be given if the UK had already left the EU by the time it came into law.

The English Democrats rely on the Wightman decision of the European Court of Justice in support of our contention that, under EU law, the PM can only agree to an extension ‘on behalf of the UK’ if she has the constitutional authority to do so. Therefore, the UK left the EU on 29^thMarch under EU as well as UK law.

Former Court of Appeal judge, Sir Richard Aikens, has said the English Democrats’ argument is at least ‘highly arguable’, see https://www.dailymail.co.uk/news/article-6882583/Former-appeal-judge-says-legality-Brexit-extension-tested-court.html.

Solicitor Robin Tilbrook, who is the Chairman of the English Democrats, said that:-

“The good news for all those who voted Leave is that we could already be Out of the EU without being saddled with Theresa May’s appallingly bad deal! The challenge to Leave supporters is that this case is our best and maybe our only chance of actually getting out of the EU. This means that we must win it at all costs! I therefore appeal to all Leave supporters to put all differences aside and to unite in supporting this case”

The claim is being crowd-funded and donations can be made here: https://www.englishdemocrats.party/donate

The English Democrats’ Submissions in full have been published here: https://robintilbrook.blogspot.com/2019/04/detailed-submissions-in-re-queen-on.html

Detailed submissions in Re: The Queen (on the Application of the English Democrats) – v – The Prime Minister (1) The Secretary of State for Exiting the European Union (2) – Case No. CO/1322/2019

IN THE HIGH COURT OF JUSTICE Claim No. CO/1322/2019

QUEEN’S BENCH DIVISION

THE ADMINISTRATIVE COURT

B E T W E E N :

THE QUEEN

(On the application of THE ENGLISH DEMOCRATS)

Claimant

– and –

THE PRIME MINISTER

First Defendant

– and –

THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION

Second Defendant

WRITTEN SUBMISSIONS OF THE CLAIMANT

INTRODUCTION

1 The Claimant is a limited company (reg. no. 6132268) and a political party registered with the Electoral Commission pursuant to the Political Parties, Elections and Referendums Act 2000 (‘PPERA’).

2 The Prime Minister exercises powers, on behalf of the Crown and pursuant to statute, concerning relations between the United Kingdom and the European Union (‘the EU’; ‘the Union’). This claim concerns the derivation and extent of those powers.

3 The Secretary of State for Exiting the European Union (‘the Secretary of State’) has responsibility for legislation and policy relating to the UK’s departure from the EU.

4 The Claimant seeks a declaration that the purported extension of the United Kingdom’s membership of the EU, purportedly agreed in March 2019, was void; and that, as a matter of domestic, international and EU law, the United Kingdom withdrew from the European Union at 11 pm on 29.3.2019, since when the Treaty on European Union (‘the TEU’) and the Treaty for the Functioning of the European Union (‘the TFEU’, together ‘the Treaties’) have ceased to apply. The claim is made on the grounds that the Prime Minister had no statutory power to extend and could not do so exercising the Prerogative powers of the Crown.

5 The Claimant also applies to amend its claim to seek a further declaration that the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 (‘the Exit Day Regulations’) are void, having been made other than in the defined circumstances in which such regulations were permitted to amend the European Union Withdrawal Act 2018 (‘the 2018 Act’); and that the passing of ‘exit day’ has had the legislative consequences provided for by the 2018 Act.

6 The Court is asked to read the Statement of Facts and Grounds first.

7 These submissions (also served on the Defendants) are intended to assist the Court with its initial legal analysis of whether the claim is arguable. The Court’s indulgence is sought, for reasons explained in the accompanying correspondence, to take them into account alongside the Statement of Facts and Grounds before determining permission. This claim is of the highest constitutional importance and there have also been two significant developments (the passing of a Bill in the House of Commons affecting the ability of the Crown to request extensions and a further purported request by the Prime Minister), outlined below, since the claim was issued.

FACTUAL AND LEGISLATIVE BACKGROUND

8 On 23.6.2016, in a referendum held in accordance with the European Union Referendum Act 2015, the United Kingdom electorate voted to leave the European Union.

9 The right of a Member State to withdraw from the EU is regulated by Article 50 (‘A50’; ‘A50.1’, etc) of the TEU, which is as follows:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

10 Subsequent to the referendum, the Divisional Court and (on appeal) the Supreme Court found that the Prerogative power of the conduct of foreign relations could not be exercised to notify the EU of the UK’s withdrawal as (inter alia) it would remove rights emanating from EU law through the conduit of the European Communities Act 1972 (‘the 1972 Act’) and it would frustrate the statutory powers and purpose of the said Act (Miller v Secretary of State for Exiting the European Union [2017] UKSC 5).

11 Consequently, Parliament (in the European Union (Notification of Withdrawal) Act 2017 (‘the 2017 Act’)) granted the Prime Minister a statutory power to notify the European Council (‘the Council’) of the UK’s intention to withdraw from the Union under A50. This power was exercised by the Prime Minister on 29.3.2017 (‘the Notification’). Accordingly, the UK would leave the European Union after a period (‘the A50 period’) of two years after the Notification (which would thereby end on 29.3.2019) unless either: (a) an agreement was concluded with the Union for the UK’s withdrawal earlier than that date; or (b) the Council unanimously decided to extend the A50 period ‘in agreement with the Member State concerned’ (A50.3). It is the Claimant’s case that a Member State may agree to extend the period only in accordance with its own constitutional arrangements: words expressly restricting the exercise of a Member State’s power to notify (by A50.1) and found by the Court of Justice of the European Union (‘the CJEU’) to restrict a Member State’s power to revoke its notification (Wightman & Others v Secretary of State ((2018) C-621/18).

12 Parliament enacted the European Union Withdrawal Act in 2018 (‘the 2018 Act’), which provided that ‘exit day’, on which day the Treaties were to ‘cease to apply’ to the UK, was 29.3.2019. The 2018 Act provides for the continuing domestic effect of EU law as it was on ‘exit day’ and the repeal of the 1972 Act on exit day; and allows the definition of ‘exit day’ to be amended by statutory instrument. The power to amend that definition may be exercised only where the Treaties are to cease to apply is different to 29.3.2019 (s 20 (4) (a)). The Act does not purport to provide HM Government with any statutory powers in relation to the conduct of relations with the EU on the international plane (as is submitted below). Much of the 2018 Act (including s 1, under which the 1972 Act would be repealed on exit day) is not in force.

13 During the A50 period, the EU and the UK government negotiated a draft Withdrawal Agreement (‘the Draft WA’) that, were it ratified by the UK and agreed by a qualified majority of the Council with the consent of the European Parliament (‘the EP’), would have been a concluded agreement by which the UK would have withdrawn from the Union. However, s 13 (1) (b) of the 2018 Act prevents UK ratification of a negotiated withdrawal agreement unless and until it is ‘approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown’. No such resolution having been approved, the Council having failed to conclude ratification by a qualifying majority vote and the EP having not consented, no withdrawal agreement has been concluded between the UK and the EU.

14 On 20.3.2019 the Prime Minister asked the Council, purportedly on behalf of the UK, to extend the A50 period to 30.6.2019. At a meeting held on 21.3.2019, the Council decided unanimously to offer to extend the A50 period to one of two dates: (a) 22.5.2019 if the UK Parliament had, by resolution on or before 12.4.2019, approved the draft WA; or (b) otherwise on 12.4.2019.[1]

15 On 22.3.2019, through a letter from Sir Tim Barrow, the UK’s permanent representative to the EU, the Prime Minister agreed to the extension of the A50 period on the terms set by the Council, doing so purportedly on behalf of the United Kingdom.

16 On 28.3.2019, purportedly pursuant to the power granted by s 20 (4) (a) of the 2018 Act, the Exit Day Regulations purported to come into effect by affirmative resolutions of both Houses of Parliament. The said Regulations purport to change ‘exit date’ to the dates by which the Council offered to extend the A50 period, as set out in para 12 above.

17 Since 29.3.2019 (and since this claim was issued) there have been two further developments of significance.

18 First, on 3.4.2019, after the House of Commons voted to disapply its long-standing procedural rule that the business of HM Government should have priority at all its sittings, voted for the First to Third Readings of a backbench Bill introduced by the Rt Hon Yvette Cooper MP that would make the UK’s request for and agreement to an extension of the A50 period subject to statutory control. The Bill was debated in the House of Lords on 4.4.2019 but has yet to complete its three readings in that House. It is of note that the Speaker of the House of Commons ruled that HM’s Consent[2]was not required before the Bill was introduced. This strongly suggests that the Speaker was advised that the Bill would not affect the Prerogative and acted on that advice; and that there is therefore no Prerogative power to extend.

19 Secondly, on 5.4.2019 the Prime Minister wrote again to the President of the Council, purporting to request on behalf of the UK a further extension of the A50 period (on the understanding that the period had already been extended and the UK remained a member of the EU). This request will be considered at a meeting of the Council on 11.4.2019, the day before the expiry of the purported extension to the A50 period. It is evidence in practice of the lack of restriction by A50 on the ability of a Member State to request, the Council to offer and a Member State to agree to further extensions of the period.

20 The Claimant’s case is that the Prime Minister had no lawful authority to ask the Council to extend the period before the UK leaves the EU, or to agree to any extension proposed by the Council in response; and that her purported acceptance of the Council’s offer to extend the A50 period was, accordingly, void. It is thereby averred that, as a matter of domestic, international and EU law, the United Kingdom withdrew from the European Union at 11 pm on 29.3.2019, since when the Treaties have ceased to apply.

21 Moreover, it is averred that the Exit Day Regulations are void as the condition precedent that must be satisfied before they may come into effect, that the date on which the Treaties were to cease to apply to the UK was different to 29.3.2019, was not met. Consequently, the parts of the 2018 Act due to come into force on exit day have been in force since 29.3.2019.

THE EFFECT OF AN EXTENSION ON DOMESTIC LAW

22 The consequence of notification under A50 was recognised by the Supreme Court to have the inevitable consequence that, but for an extension, the Treaties would cease to apply to the United Kingdom after two years (Miller, paras 36 and 94, in which Lord Pannick QC’s analogy of a bullet being fired at notification, to reach inevitably the ‘target’ of withdrawal, was adopted). This position must now be modified by the decision of the CJEU that unilateral revocation of notification is possible (Wightman, albeit the Supreme Court accepted that there was no more an agreed position to accept and not argue the irrevocability of notification).

23 Parliament, in passing the 2017 Act, provided the Prime Minister with the power to notify, thereby ‘firing the bullet’ that would lead to the UK’s withdrawal from the EU. It was only through that statutory power that EU law could be ended but by the exercise of that power EU law would automatically cease to apply (through the conduit of the 1972 Act) after two years. The only exception was through extension of the A50 period or revocation of notification, neither of which are contemplated by the 2017 Act.

24 Were the A50 period extended (as HM Government claim that it has been), continued EU membership will have considerable consequences on domestic law. In particular and inter alia:

(1) All EU Regulations would have continued direct effect;

(2) The UK would be under a continuing obligation to incorporate Directives into domestic law; and those Directives may be relied on directly if any secondary legislation departs from the Directives by more than the margin of appreciation;

(3) UK courts[3]must continue to comply with EU law, including both legislation and the case law of the CJEU;

(4) UK courts continue to have the power to refer questions of EU law to the CJEU, after which its decisions will be binding;

(5) The developments of EU law to which the UK would be subject in the period of the extension could include criminal offences the UK would be required to create;

(6) The UK would be obliged to pay into the EU budget; and, such budgetary contributions being calculated on a daily basis, payments have been made (whether lawfully or otherwise) from 11 pm on 29.3.2019; and

(7) The EU Arrest Warrant would continue to apply, affecting the rights (including under Articles 5 and 6 of the European Convention on Human Rights and Fundamental Freedoms (‘the Convention’)) of all residents of the UK.

25 The above effects of EU membership on EU law were described, in Miller, as ‘a new constitutional process for making law in the United Kingdom’ (para 62), created by the ‘constitutional character’ of the 1972 Act (para 67). EU law is not comparable to delegated legislation: for as long as the conduit of the 1972 Act continues to exist ‘EU legislative institutions… make laws independently of Parliament’ (para 68).

26 There is no limitation to the length of the period by which A50 may be extended. It is not merely reductio ad absurdum to posit that, were the Crown able to ask for and agree to extensions of the period through its Prerogative, such extensions could change the law of the United Kingdom for years afterwards: either through one or a series of extensions. The recent history of the applications that have been (purportedly) made and granted demonstrate the far-reaching nature of the power presumed by the Crown.

27 First, the Prime Minister’s initial request for an extension was agreed by the EU only on particular terms that the Draft WA must be approved by the House of Commons) and with a varied length dependent upon the actions of the House. There was no attempt to agree these variations to the original request before the Prime Minister agreed to them – the making of the Exit Day Regulations post-dated that acceptance, by which date (were the Prime Minister’s actions lawful) the period had already been extended in EU and domestic law.

28 Secondly, the Prime Minister has since requested a second extension with no prior Parliamentary resolution and would (were her interpretation of her powers correct) have the power to agree to an extension for as long as the EU were prepared to offer without any further Parliamentary involvement whatsoever.

29 The purported agreement to the extension and the Exit Day Regulations did not repeal the 1972 Act. Section 1 of the 2018 Act was not then and is not now in force. Consequently, were Exit Day to have passed (as the Claimant’s maintain that it has) its effect on domestic law would in theory have been limited to the consequential and transitional provision set out in s 23 (8) of the Act (relating to the repeal of the European Union Act 2011); and Schedule 9 (additional repeals of the same Act).

30 Yet, while the 1972 Act would not technically have been repealed, it would have no continuing effect on domestic law if the UK withdrew from the EU in those circumstances: it would become (and the Claimant’s case is that it has become) a hollow shell. Section 2 (1) of the 1972 Act, headed “General Implementation of Treaties”, was in these terms:

“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly …”

(Emphasis added)

31 The Supreme Court adopted Professor Finnis’s description of the 1972 Act as a ‘conduit’ through which EU law passed into domestic law (para 65). But that conduit applies to the rights, obligations (etc) only ‘from time to time’ arising under the Treaties. As the Supreme Court recognised (at para 24), the Treaty of Lisbon (and A50, which it introduced into the TEU) is incorporated into UK law through the European Communities (Amendment) Act 2008. Thus, when the Treaties cease to apply to the UK, the rights and obligations of EU membership – including all the effects on domestic law set out in para 24 above – also cease.

32 This analysis is not contradicted by the rejection by the majority in Miller of the argument (including in the dissenting judgment of Lord Reed and in the academic opinions of Professor Finnis and others) that there remained a Prerogative power to notify (under A50). That (unsuccessful) argument was that the foreign relations Prerogative would not frustrate the 1972 Act as it provided a conduit for the application of EU law only for as long as the Treaties applied ‘from time to time’ on the international plane; and that within the Treaties was the right to withdraw. Their Lordships did not contradict the clear meaning of s 2 (1) of the Act – expressed in the conventional terms of legislation giving domestic effect to international obligations – that the Treaties remained a conduit for the domestic effect of EU law only for as long as those Treaties applied. Rather, it simply found that the means by which the UK could trigger a process leading to its inevitable (it was thought) withdrawal were restricted to the passage of primary legislation: notification wouldfrustrate the purpose of the 1972 Act and the Prerogative could not be used to remove the rights that applied in domestic law through the conduit of the Act.

NO STATUTORY POWER

33 ‘Exit day’ is defined in s 20 (1) of the 2018 Act as 29 March 2019 at 11.00 p.m. Its importance in domestic legislation is that, were s 1 in force (which it is not), the 1992 Act would be repealed on exit day. It otherwise has the consequences set out above.

34 Section 20 of the 2018 Act provides for circumstances in which a Minister may ask for secondary legislation to be approved by both Houses of Parliament, amending ‘exit day. The relevant provisions of this section are as follows:

(4) A Minister of the Crown may by regulations—

(a) amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and

(b) amend subsection (2) in consequence of any such amendment

35 Thus:

(1) The sub-sections create a power to amend primary legislation, a so-called ‘Henry VIII’ clause.

(2) A Minister may only lay, both Houses of Parliament may only approve (through the affirmative resolution procedure) and the Minister may only (thereafter) make secondary legislation once there is already a ‘day and time’ that the Treaties ‘are’ to cease to apply in the UK. It must follow that this clause is only operative where, as a matter of EU and international law, the extension has already been agreed and become effective pursuant to A50. Thus, any regulations passed before the completion of the extension are void as a matter of domestic law. [4]

(3) It follows that the 2018 Act does not purport to create a statutory power for the Crown to apply and/or agree to an extension on behalf of the UK. The statutory power is limited to enabling amendment of legislation and has no lawful effect until, as a matter of EU and (because of the effect of the 1972 Act) domestic law, the continued application of the Treaties through EU membership has already been extended.

36 Moreover, neither the 2017 nor the 2018 Act confer an implied statutory power to extend A50 on the international plane.

37 The 2017 Act created a power of notification under A50 that was specific and narrowly confined. The language of the very short statute is not unclear or vaguely worded and does not allow for any construction other than its express meaning.

38 Section 20 (3) and (4) of the 2018 Act operates only once such power as there may be to extend is exercised lawfully. Further and alternatively, these sub-sections are ‘Henry VIII’ clauses allowing the modification of primary legislation. Such clauses may only be construed narrowly, not broadly, and only as an ‘exceptional’ course (see R (Public Law Project) v Lord Chancellor [2016] UKSC 39 at para 27, applying McKiernon v Secretary of State for Social Security, The Times, November 1989, CA). There is simply no space for the implication of a statutory power into s 20(4) EUWA therefore faces an additional hurdle.

39 Of significance here is the finding of the Supreme Court in Miller that s 2 (1) of the 1972 Act (quoted above) did not and cannot have created a statutory ‘power’ to notify under A50 on the international plane, as such a power was ‘not one which would be given “legal effect or used in”, or which would be “enjoyed by the United Kingdom”’ (para 79). Similarly, the power of secondary legislation conferred by s 20 (1) are restricted to circumstances in which the date on which the Treaties cease to apply to the UK has already changed. They do not purport to affect what power there may be to extend A50, which necessarily must have been exercised before such secondary legislation could be put into effect.[5]

NO PREROGATIVE POWER

The Crown may not legislate, create criminal offences or raise taxes

40 In Miller, the Supreme Court was concerned with rights that would be removed by the purported operation of the Royal Prerogative (purported because it was found to be in abeyance) and it was for that reason (in addition to the finding that A50 notification would frustrate the statutory scheme of the 1972 Act) that it determined that there was no Prerogative power to do so. While withdrawal from the EU undoubtedly does remove ‘rights’, it also removes what s 2 (1) of the 1972 Act described as ‘liabilities’, ‘obligations’ and ‘restrictions’. Aside from financial liabilities (itself a matter of constitutional significance given the control of Parliament over supply), the continued effect of EU law and the inability of the Westminster Parliament to legislate in contravention of it (under the domestic law provisions of the 1972 Act as well as pursuant to the UK’s international obligations) is undoubtedly both an obligation and a restriction (as summarised above).

41 In Miller, the Court distinguished the scheme of the 1972 Act from other acts of the Crown on the international plane. In the latter, the ‘dualist’ theory – which derives from Parliamentary sovereignty – provides that Prerogative acts on the international plane have no effect on domestic law (paras 56-58). Under the 1972 Act, however, executive acts may change domestic law and curtail the (otherwise) sovereign right of Parliament to legislate ( R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603 and (No 5) [2000] 1 AC 524, cited at para 60 of Miller).

42 While the rights the Supreme Court sought to protect from the unlawful use of the Prerogative were individual rights created by EU law, the 17^thcentury development of constitutional principles restricting the Prerogative (on which the Supreme Court rightly relied[6]) were an objection to the Crown’s right (in particular) to legislate, create criminal offences and raise taxation: from the Case of Proclamations ([1610] EWHC KB J22) to the Bill of Rights 1689 and beyond.

43 In the former, Lord Coke (relying on the customs of the Realm from at least the reign of Henry IV expounded by Sir John Fortescue in De Laudibus Angliae Legum) found that:

‘…when authority and precedent is wanting, there is need of great consideration, before that any thing of novelty shall be established, and to provide that this be not against the law of the land: for I said, that the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament…

‘…also the law of England is divided into three parts, common law, statute law, and custom; but the King’s proclamation is none of them: also malum aut est malum in se, aut prohibitum, that which is against common law is malum in se, malum prohibitum is such an offence as is prohibited by Act of Parliament, and not by proclamation.

44 Through the Bill of Rights, Parliament declared that the Crown may not:

‘…endeavour to subvert and extirpate… the Lawes and Liberties of this Kingdome… By Assumeing and Exerciseing a Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament…

‘By Levying Money for and to the Use of the Crowne by pretence of Prerogative for other time and in other manner then the same was granted by Parlyament…

‘And illegall and cruell Punishments inflicted.’

45 As the Supreme Court emphasised in Miller:

Parliamentary sovereignty is a fundamental principle of the UK constitution, as was conclusively established in the statutes referred to in para 41 above. It was famously summarised by Professor Dicey as meaning that Parliament has “the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament; – op cit, p 38. The legislative power of the Crown is today exercisable only through Parliament. This power is initiated by the laying of a Bill containing a proposed law before Parliament, and the Bill can only become a statute if it is passed (often with amendments) by Parliament (which normally but not always means both Houses of Parliament) and is then formally assented to by HM The Queen. Thus, Parliament, or more precisely the Crown in Parliament, lays down the law through statutes – or primary legislation as it is also known – and not in any other way.

(Para 43)

And:

…The Crown’s administrative powers are now exercised by the executive, ie by ministers who are answerable to the UK Parliament. However, consistently with the principles established in the 17th century, the exercise of those powers must be compatible with legislation and the common law. Otherwise, ministers would be changing (or infringing) the law, which, as just explained, they cannot do. A classic statement of the position was given by Lord Parker of Waddington in The Zamora [1916] 2 AC 77, 90:

“The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogative involves any power to prescribe or alter the law administered in Courts of Common Law or Equity.”

(Para 45)

46 The purported exercise of the Prerogative in extending A50 is, on one view, a more serious breach of the prohibition on the Crown to legislate than A50 Notification would have been. While notification would have affected rights granted by EU law through the conduit of the 1972 Act, the extension of the A50 period – for a potentially unlimited period – continues the curtailment of Parliamentary sovereignty that would otherwise end with the withdrawal of the United Kingdom from the European Union. It strikes at the heart of the abuse of the Crown’s power excoriated by Fortescue, Coke and the 1689 Convention Parliament.

47 Parliament, by granting the Prime Minister the power to notify, authorised the removal of the liabilities, obligations and restrictions imposed by the Treaties two years after notification; and for domestic law to revert to the status quo ante the 1972 Act, thereby restoring its sovereignty that was (temporarily) curtailed by that Act. Were there a Prerogative power to extend EU membership after the expiry of the initial A50 period, that power would require the continuance in domestic law of those liabilities, obligations and restrictions; and the continued curtailment of Parliamentary sovereignty. But for that act, domestic law would by the operation of the Notification have ceased to incorporate changes to EU law. This exercise of a purported Prerogative by the Prime Minister would thus, by executive fiat, cause legislation to be made, Parliament’s right to legislate to be restricted, criminal offences to be created and taxes to be raised. The Crown has never had such a Prerogative; and its purported exercise of it is unlawful and void.

No Prerogative power save where sanctioned by statute

48 At para 86 in Miller, the majority held that:

‘…the Royal Prerogative to make and unmake treaties, which operates wholly on the international plane, cannot be exercised in relation to the EU Treaties, at least in the absence of domestic sanction in appropriate statutory form. It follows that rather than the Secretary of State being able to rely on the absence in the 1972 Act of any exclusion of the Prerogative power to withdraw from the EU Treaties, the proper analysis is that, unless that Act [the ECA] positively created such a power in relation to those Treaties, it does not exist.’

49 So, while the Crown may still exercise Prerogative powers in relation to the Treaties (as also acknowledged in para 95), it may do so only as authorised by statute. At para 87, the Court considered whether the 1972 Act conferred a power of withdrawal and determined that it did not:

‘…Had the Bill which became the 1972 Act spelled out that ministers would be free to withdraw the United Kingdom from the EU Treaties, the implications of what Parliament was being asked to endorse would have been clear, and the courts would have so decided. But we must take the legislation as it is, and we cannot accept that, in Part I of the 1972 Act, Parliament “squarely confront[ed]” the notion that it was clothing ministers with the far-reaching and anomalous right to use a treaty-making power to remove an important source of domestic law and important domestic rights.

50 Similarly, Parliament could in the 2017 Act have ‘spelled out’ the power of the Crown not simply to notify but to ask for and agree to extend the A50 period. But it did not. Thus, in the absence of such statutory authority – particularly given that the Crown could otherwise request and agree to extensions on repeated occasions and/or of unrestricted duration – the Crown has no such power.

Frustration of the purpose of the 2017 and 2018 Acts

51 In Miller, the Supreme Court set out a digest of a further common law limitation on the Prerogative: namely that it may not frustrate the purpose of a statute or be exercised where a particular statutory scheme exists regulating the exercise of executive power:

[47] The Royal prerogative encompasses the residue of powers which remain vested in the Crown, and they are exercisable by ministers, provided that the exercise is consistent with Parliamentary legislation. In Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, 101, Lord Reid explained that the Royal prerogative is a source of power which is “only available for a case not covered by statute”. Professor HWR Wade summarised the position in his introduction to the first edition of what is now Wade and Forsyth on Administrative Law (1961), p 13:

“[T]he residual prerogative is now confined to such matters as summoning and dissolving Parliament, declaring war and peace, regulating the armed forces in some respects, governing certain colonial territories, making treaties (though as such they cannot affect the rights of subjects), and conferring honours. The one drastic internal power of an administrative kind is the power to intern enemy aliens in time of war.”

[48] Thus, consistently with Parliamentary sovereignty, a prerogative power however well-established may be curtailed or abrogated by statute. Indeed, as Professor Wade explained, most of the powers which made up the Royal prerogative have been curtailed or abrogated in this way. The statutory curtailment or abrogation may be by express words or, as has been more common, by necessary implication. It is inherent in its residual nature that a prerogative power will be displaced in a field which becomes occupied by a corresponding power conferred or regulated by statute. This is what happened in the two leading 20th century cases on the topic, Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 and Fire Brigades Union cited above. As Lord Parmoor explained in De Keyser at p 575, when discussing the prerogative power to take a subject’s property in time of war:

“The constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject.”

[49] In Burmah Oil cited above, at p 101, Lord Reid described prerogative powers as a “relic of a past age”, but that description should not be understood as implying that the Royal prerogative is either anomalous or anachronistic. There are important areas of governmental activity which, today as in the past, are essential to the effective operation of the state and which are not covered, or at least not completely covered, by statute. Some of them, such as the conduct of diplomacy and war, are by their very nature at least normally best reserved to ministers just as much in modern times as in the past, as indeed Lord Reid himself recognised in Burmah Oil at p 100.

[50] Consistently with paras 44 to 46, and the passage quoted from Professor Wade in para 47 above, it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law. As Lord Hoffmann observed in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, para 44, “since the 17th century the prerogative has not empowered the Crown to change English common or statute law”. This is, of course, just as true in relation to Scottish, Welsh or Northern Irish law. Exercise of ministers’ prerogative powers must therefore be consistent both with the common law as laid down by the courts and with statutes as enacted by Parliament.

[51] Further, ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation. Thus, ministers could not exercise prerogative powers at the international level to revoke the designation of Laker Airways under an aviation treaty as that would have rendered a licence granted under a statute useless: Laker Airways Ltd v Department of Trade [1977] QB 643 – see especially at pp 718-719 and 728 per Roskill LJ and Lawton LJ respectively. And in Fire Brigades Union cited above, at pp 551-552, Lord Browne-Wilkinson concluded that ministers could not exercise the prerogative power to set up a scheme of compensation for criminal injuries in such a way as to make a statutory scheme redundant, even though the statute in question was not yet in force. And, as already mentioned in para 35 above, he also stated that it was inappropriate for ministers to base their actions (or to invite the court to make any decision) on the basis of an anticipated repeal of a statutory provision as that would involve ministers (or the court) pre-empting Parliament’s decision whether to enact that repeal.

52 The Court distinguished cases where the exercise of the Prerogative changed the status of ‘a person, thing or activity’ (for example by declaration of war, which was permissible) from cases where its exercise ‘changed the law’ (para 53).

53 The 2017 Act did not merely give the Prime Minister a power to notify. The long title of the Act was:

‘An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU’

(Emphasis added)

54 Given that it was Parliament’s intention that the UK would withdraw from the EU, the Prime Minister had a discretion when, not whether, to notify. But whether or not the exercise of the power was discretionary, Parliament authorised an act which would, if exercised, lead inexorably to the consequences on domestic law outlined at para 24 above – the end of the curtailment by EU membership on Parliamentary sovereignty and the end of the EU’s powers to imposed legislation, criminal offences and demands of revenue on the UK. Parliament must be assumed to have legislated knowing that the consequence was that EU membership would end (absent an extension) not later than two years after notification, particularly given the express statutory reference to A50 in s 1 of the Act.

55 It has been submitted that the absence of a statutory power – in the 2017 Act or elsewhere – is sufficient for the court to determine that the Prime Minister’s purported agreement to the extension was void. Alternatively, such an act would frustrate the purpose and scheme of the 2017 Act. The power given by Parliament to the Prime Minister was limited to notification. Those powers could have extended to agreeing to an extension ‘on behalf of the [United Kingdom]’. But they did not.

56 The further means by which the date of the withdrawal of the UK from the EU could have been different from two years after notification was by the ratification of a withdrawal agreement by the UK and the EU. Yet the absence of reference to this in the 2017 Act is of no object, as any such withdrawal agreement could only have affected domestic law through further primary legislation (JH Rayner (Mincing Lane) v Department of Trade and Industry, supra). Such an agreement would otherwise only affect the UK’s international obligations; and its ratification would be through the Crown’s classic Prerogative of the conduct of foreign relations, in contradistinction to an extension of the A50 period, which would affect domestic law.

57 Finally, Parliament has since provided a statutory scheme, in the 2018 Act, for the UK’s withdrawal from the EU. While this scheme is intended to preserve the continuity of law after withdrawal (and while much of it is not in force) it was passed with the purpose of putting that withdrawal into effect in domestic law.

58 As has been set out, the Act does not merely define exit day but allows that date to be amended after (but only after) the A50 period has been extended. Yet, while Parliament could have provided for an executive power to agree to such an extension, it did not do so. The fact that ‘exit date’ could be extended cannot presuppose that a power already exists for HM Government to agree to extend the A50 period. Such an executive act would be wholly independent of the 2018 Act.

59 The lawfulness of any power to agree to an extension must be seen in the context of scheme of A50, which applies no limit to the duration of an extension or to the number of times it may be requested. It either exists or it does not. It is impossible – and undesirable – to attempt to draw a distinction between short extensions (such as those purportedly agreed by the Prime Minister) and longer ones; or between a first agreement to extend and subsequent agreements. The power either exists or it doesn’t; and each time it is exercised it has the same effect on domestic law – continuing the curtailment of Parliamentary sovereignty and the power of the EU to legislate, create offences and raise funds. Such a power would thereby frustrate the 2018 as much as the 2017 Act and any attempt to request or agree to an extension would, accordingly, be void.

EFFECT OF LACK OF POWER TO EXTEND

Under EU and international law

60 If the Prime Minister acted unlawfully by purporting to exercise Prerogative powers in seeking and agreeing to an extension of the A50 period, that act was void not merely as a matter of domestic law but as a matter of EU and international law.

61 It is an important feature of this matter that the unlawfulness of the powers purportedly exercised by the Prime Minister on the domestic plane will have no effect in domestic law if that exercise nevertheless binds the United Kingdom as a matter of EU law. The 1972 Act continues to be a conduit for EU law for as long as the Treaties apply to the UK; and the powers of HM Government and Parliament to make the Exit Day Regulations are dependent upon the A50 period ending on a different day to 29.3.2019. Thus, unless the unlawfulness of the Prime Minister’s actions voids them under EU law, they will still have domestic law consequences. For reasons developed below, it is submitted that acts by the Prime Minister within the EU bind the UK only where they are conducted in compliance with domestic law.

62 The unconstitutional[7]and unattractive consequences of an unlawful act of a head of government potentially binding a Member State are themselves an important consideration in support of that contention. Three other submissions are made.

63 First, the scheme of A50 requires that all acts of the government of a withdrawing Member State are void unless done in accordance with the constitutional arrangements of the member state. While this is only expressly required of notification (in A50.1), the CJEU found in Wightmanthat notification may only be revoked in accordance with the constitutional requirements of a departing Member State (paras 37, 58, 66 and 67). The importance of the constitutionality of a Member State’s actions under A50 reflected the weight put upon the democratic process of those states by the EU (see para 67): and there can be little less democratic than an executive act, possibly exercised continuously, binding the UK to continued membership of the EU for indeterminate periods.

64 As has been submitted, the consequences of extension are considerable both for the EU and for the Member State concerned: for the period of the extension, they are identical to the consequences of revocation (and, while the CJEU in Wightman cautioned against the revocation of notification being used for tactical purposes prior to a renewed notification, there is no bar in EU law to a future notification after revocation). For the Member State, the obligations and liabilities summarised in para 24 above remain. For the EU, the Member State’s representation in all EU institutions remains, thereby diluting that of other Member States and providing that Member State with a veto over some decisions of the Council of the European Union and the European Council.

65 Secondly, the EU is a Union of States and Peoples founded upon democratic principles. Relations between governments within it are dependent upon the lawfulness of the acts of those governments under their domestic law, respect for which is inherent within the Treaties. Inter-governmental relations affecting the notification of withdrawal and extension of the A50 period are not the conduct of international relations between treaty making foreign powers nor even (save in respect of the negotiation of a withdrawal agreement) a treaty making process between current members of the EU. The application for and agreement to an extension is to be done between the UK and the Council ‘with the agreement of the Member State’. The Member State is not merely its government and its government may not act on its behalf save under its lawful authority. It would be inapt to treat the acts of governments of member states within such bodies as being comparable to the ‘apparent authority’ of governments when exercising treaty making powers on the international plane.[8]

66 Thirdly, precedent in international law supports the Claimant’s contention that unconstitutional acts of a head of government (in the context of the UK, acts unlawful in public law terms) cannot bind a member state of a supranational organisation. In his opinion preceding the CJEU judgment in Wightman (ECLI:EU:C:2018:978), Advocate General Campes Sanchez Bordona gave an example of the unconstitutional act of a head of government within a supranational body being void as a matter of international law:

69. On 19 August 2009, the Government of Panama notified (43) its withdrawal from the Treaty Constituting the Central American Parliament and Other Political Bodies (‘Parlacen’), (44) citing in support of its position Article 54(b) of the VCLT. Faced with the refusal of the members of Parlacen, the Government of Panama requested the Panamanian National Assembly to approve Law 78, of 11 December 2011, which echoed the wording of that notification and proposed the annulment of the Panamanian instruments which ratified that Treaty. However, the Corte Suprema de Justicia de Panamá (Supreme Court of Justice, Panama) declared that law unconstitutional, in that it infringed Article 4 of the Panamanian Constitution (‘The Republic of Panama abides by the rules of International Law’), since the Parlacen Treaty did not include a clause expressly providing for withdrawal and that withdrawal was not feasible under Articles 54 and 56 of the VCLT. (45) As a result of that judgment, Panama’s withdrawal notification was revoked and that country resumed participating in Parlacen.[9]

67 It was not suggested that Panama needed to be re-admitted to Parlacen: its notification of withdrawal was void ab initio in view of its government acting without constitutional authority. This principle applies, if anything, more to the relations between the UK and the EU. The EU is not merely an organisation of states but of peoples. It is a highly integrated supranational organisation with a directly elected law making assembly, whose laws override national laws and whose Court of Justice is the ultimate arbiter of that law. Where exercising powers at an inter-governmental level, governments may only act in accordance within their constitutional authority.

68 Consequently, in the event the Crown had no power to agree, the extension cannot have been made ‘with the agreement of the Member State concerned’ and the Treaties ceased to apply to the UK on 29.3.2019.

In domestic law

69 Parliament only had the power to make the Exit Day Regulations if, as a matter of international law, the date on which the Treaties ‘are to cease to apply… is different’ to 29.3.2019 (s 20 (3) of the 2018 Act). If the extension purportedly agreed by the Prime Minister before those Regulations were made (on 28.3.2019) was void, the date on which the Treaties would cease to apply was not different (as a matter of international law), Parliament would have had no power to make the Regulations and they were void.

70 The consequential effect on domestic law has been set out in paras 24 above. The limited parts of the 2018 Act in force would have come into effect on ‘exit day’ (11 pm on 29.3.2019) and the 1972 Act, while not repealed (s 1 of the 2018 Act not being in force) would cease to be a conduit for EU law, the Treaties having ceased to apply to the UK.

71 Because HM Government and Parliament have not (through secondary legislation) put the remaining important provisions of the 2018 Act into force, there would thereby be some uncertainty as to the status of EU Regulations that previously had effect under the 1972 Act. It is suggested that Directives incorporated by secondary legislation would continue to have effect given that such legislation was in accordance with the 1972 Act then in force. Regulations that came into effect while the Treaties applied to the UK might continue to remain law under the 1972 Act, which remains in force. That Act provided that Regulations had automatic effect while the Treaties applied to the UK and did not provide that their continued validity (in domestic law) was dependent upon continued EU membership. Alternatively, Parliament could pass primary legislation to put the 2018 Act provisions into force retrospectively.

72 However, none of the above consequences can or should stop the Court from determining this case under the correct legal principles. If the Prime Minister’s agreement to the extension of the A50 period was void, it was void whatever disruptive consequences that may have on UK law or otherwise. The Courts must enforce the rule of law, whatever the consequences.

STANDING

73 The test for standing in judicial review proceedings is not high. In Walton v Scottish Ministers ([2012] UKSC 44) the Supreme Court quoted with approval this finding of Lord Denning in Attorney-General of the Gambia v N’Jie ([1961] AC 617, at 634):

“The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.”

74 Particularly pertinent to this case is the judgment of the Administrative Court in R (on the application of Save our Surgery Ltd) v Joint Committee of Primary Care Trusts ([2013] EWHC 439 (Admin), ‘Save our Surgery’). There, Nicola Davis J found that a claimant had sufficient interest where it represented:

“…many individuals who have contributed financially in order to bring these proceedings. It includes individuals who have been or could be directly affected by the closure of the Leeds Unit and clinicians who work within the unit. Incorporation, following the intervention of the Charity Commission, was a proper means of allowing the interests of a substantial number of such persons to pursue this litigation”

75 In making this decision, the Court took into account that:

The majority, if not all of the individuals who have contributed to the fighting fund, together with the Directors of the claimant, would have a direct sufficient interest in their own right had they brought the claim as individuals… The adverse costs in litigation are such that no citizen of ordinary means would prudently contemplate bringing this litigation as an individual. Incorporation was and is the proper means of allowing the interests of a substantial number of persons who consider the defendant’s decision to be unfair and unlawful to be jointly represented…

76 This case is being brought by a Political Party registered to participate in regulated democratic elections. In the 2014 EP elections it received around 125,000 votes.[10] Moreover, this litigation is being crowd-funded and it is reasonable to suppose that a large proportion of its funders are citizens or residents of the UK with an interest in its membership of the EU. As in Save our Surgery, most if not all of the Claimant’s members would have standing were any one of them to pursue a claim individually; the costs and costs risks of such proceedings would be prohibitive for any of them individually; and it is reasonable for a corporation to litigate such proceedings. Indeed, there is if anything more reason for the Claimant to have standing as it has been a registered political party since 1999, twenty years before this challenge.

POSTSCRIPT

77 Given the initial requirement of permission, the Claimants rely with gratitude on the opinions and comments expressed in the public domain by the Rt Hon Sir Richard Aikens (a former lord justice of appeal speaking extra-judicially), in support of the contention that this claim is at least arguable:

(1) In an opinion article for ‘Briefings for Brexit’ published on 25.3.2019, before the extension came into effect; and

(2) In comments reported on 3.4.2019, after the start of the purported extension, in which he stated that “the way in which the extension was organised [was] ‘highly unsatisfactory’ and ‘arguably illegal’” and that

‘If the argument… is correct, then it would mean that, under UK law, we left the EU last Friday at 11pm. The Treaties would no longer be binding and the UK would no longer be subject to EU law.’

‘The argument obviously becomes much more important if there is any attempt at a longer “extension”, but, logically, if the argument is correct, then any attempt at a further extension would be a legal nonsense as the UK would already be “out”.’[11]

78 Sir Richard’s article is attached as an annex to these submissions.

CONCLUSION

79 The attempt by the Prime Minister to exercise a prerogative power to extend EU membership continued was an attempt to continue, by executive fiat, the curtailment of Parliamentary sovereignty and the power of the EU to legislate, make criminal offences and raise funds. No such power exists, being contrary to fundamental principles of the common law, and her agreement to the extension was, accordingly, void.

80 Alternatively, the exercise of such a power would have frustrated the 2017 and 2018 Act and was void.

81 In consequence, the United Kingdom’s membership of the EU ended on 29.3.2019, since when the Treaties have ceased to apply to domestic law.

8^thApril, 2019

FRANCIS HOAR

Field Court Chambers,

5 Field Court,

Gray’s Inn,

London WC1R 5EF

[1]It is unclear whether the Republic of Hungary exercised its vote, although it did not veto the decision to accept the Prime Minister’s request, purportedly on behalf of the United Kingdom, or the offer to extend the A50 period to the two alternative dates.

[2]Required wherever legislation may curtail Her Majesty’s Prerogative.

[3] Those in the three jurisdictions of England and Wales, Scotland and Northern Ireland.

[4]An argument has been raised that the draft SI could be put before both Houses of Parliament for affirmation before agreement was made to extend at the international level and the SI made by the Minister only after the date on which the Treaties ‘are’ to cease to apply was different to 29.3.2019. This argument is not made or developed here and would fall to be considered only as an alternative to the Claimant’s position: which is that only primary legislation could create a statutory power for HM Government to agree to an extension ‘on behalf of the United Kingdom’.

[5]I am indebted to Robert Craig, tutor in law at Durham University and the LSE, for his analysis of the statutory context, albeit that he comes to a different conclusion on the possible exercise of the Prerogative: R. Craig, ‘Can the Government Use the Royal Prerogative to Extend Article 50?’, U.K. Const. L. Blog (9th Jan. 2018): https://ukconstitutionallaw.org/2019/01/09/robert-craig-can-the-government-use-the-royal-Prerogative-to-extend-article-50/

[6] See paras 41 and 44

[7] When these submissions refer to ‘unconstitutional’ in the UK context, what is meant are acts of a constitutional nature that are unlawful on statutory and/or common law grounds and may thereby be voided by judicial review. Excluded from the term (as used here) are breaches of convention that might be described as ‘unconstitutional’ but are non-justiciable.

[8]Where a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance: Vienna Convention on the Law of Treaties art 46 para 1

[9]The Advocate General includes a citation to the following article, which is in the Spanish language: http://www.parlacen.int/Actualidad/Actualidad/tabid/146/EntryId/369/Reintegro-de-Panama-al-PARLACEN.aspx

[10] https://www.bbc.co.uk/news/events/vote2014/eu-uk-results

[11] https://www.dailymail.co.uk/news/article-6882583/Former-appeal-judge-says-legality-Brexit-extension-tested-court.html

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Category Archives: EU

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