Category Archives: judge

LADY HALE, PRESIDENT OF THE SUPREME COURT AND FEMINIST ACTIVIST

Many lawyers and constitutional commentators have pointed out that Lady Hale, the President of the Supreme Court, who delivered the Judgment in the proroguing of Parliament case, and her colleagues in the Supreme Court, invented a completely new basis on which “Proceedings in Parliament” would be dealt with by the courts. They completely ignored the legally and constitutionally correctly traditional Judgment of the High Court.

I thought however that it was worth highlighting Lady Hale’s comments that were reported approvingly in the Sunday Times on September 29^th under the headline of “Take the right partner to be supreme at law” by Nicholas Hellen. He writes about Lady Hale and her political views from a speech that she made at the launch of “Cambridge Women in Law” in which he says that she “spent an hour dispensing her thoughts on how women can succeed in the male dominated world of the judiciary”.

The article reports Lady Hale as saying:- “When I came to Cambridge, I knew it was a privilege. I bet every woman in this room knew it was a privilege to be here. But I was surrounded by men who thought they were entitled to be here. And that is one of the things that we still have to go on fighting against. The male sense of entitlement.”

She spoke of loosening the grip of the “quadrangle-to-quadrangle-to-quadrangle boys”. A reference to a man who goes from a public school to Oxbridge and then to the Inns of Court “we haven’t got the history of people of our sex doing the job for generation after generation”, she told the audience.

Hale said:- “Feminism is believing in equality, equality for women and the validity of women’s experiences. That is how I define feminism.

Men can be feminists too and there are lots of them and there are loads of women who aren’t. Those are probably the people that we most have to contend with rather than men because they are in many ways the real problem rather than men.”

She also spoke of sometimes lacking in confidence, and talked of how Gina Miller, the businesswoman and campaigner who brought the case to the Supreme Court, dressed to help give her the confidence to fend off “people’s bigoted assumptions”.

Hale suggested that this was a metaphor, “throwing light on this problem that women generally lack confidence”.

The article finishes by saying that Lady Hale has asked Mary Arden, who has joined the Supreme Court:- “I have asked her please, please when I retire, would she keep up the good work”.

Whatever you think of Lady Hale’s views, the one certainty it seems to me is that she is demonstrating yet again where on the spectrum her political values come from. So she is vividly demonstrating that the Blairite creation of the Supreme Court has worked well from its creator’s point of view in entrenching Blairism into the Constitution. It also vividly demonstrates the general effectiveness of the Left’s “Long March through the Institutions”.

What do you think?

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.

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.

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:

(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

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

TOMMY ROBINSON’S PROSECUTION TO CONTINUE!

Unfortunately my work commitments would not allow me to attend on Tuesday to support Tommy Robinson in what I thought likely to be his hour of trial.

Had I however seen his witness statement, which I set out below, then I would have thought it likely that his case would not be tried on Tuesday because he clearly now is not going to plead guilty and is making statements of fact which the Court would want challenged in cross-examination.

The Court’s evidence rule being that if it were not to be challenged in cross-examination, his statements of fact would have to have been accepted by the Court. The referral by the Judge therefore to bring in the Attorney General (the State’s legal department), was not a decision that, in the long run, is definitely going to be in Tommy Robinson’s favour. A more likely reading would appear to be that the Judge wants to see the truthfulness of Tommy Robinson’s witness statement to be challenged in Court.

I have seen interviews with Tommy Robinson where he is saying that he doesn’t think it is right or consistent with previous practice for him to be sent to prison for Contempt of Court. I agree with him that his treatment seems, on the face of it, to have been harsh. It also comes on a long track record of improper official and police harassment. This is someone who has shown great bravery in breaking the story of the many Pakistani Muslim child rape gangs operating in this country. This was disgracefully unchecked by many of the officials whose job it was to look after the public and/or the girls who were shamefully and appallingly mistreated.

However, from a legal point of view, Tommy’s problem is that he was serving a suspended jail sentence with a term of 6 months in the event that he was convicted again of Contempt of Court. It follows therefore, as night follows day, that if he is reconvicted when his case comes back for trial he will be going back to prison. The absolute legal minimum sentence for him, which applies automatically, is that his 6 month jail sentence is to be served.

I think it unlikely however that any Judge convicting him of a second contempt, within the period of his first suspended prison sentence, wouldn’t give him further immediate custodial time to serve for the second offence.

The maximum period for the second offence is 2 years imprisonment. In my opinion, a further jail sentence is highly unlikely to approach this maximum, since this is by no means the most serious of contempts. I would however have thought that the Court would perhaps want to assert its authority and at the same time not to provoke disorder in the way of demonstrations. My guess would therefore be that Tommy would serve a few more weeks.

In the meanwhile on Sunday an interesting article was published in the Sunday Times, a paper which has become less and less of a “Journal of Record” and more and more openly propagandistic for the globalists, internationalist, British Political Establishment.

Personally I have also found it disappointing to see the author, Andrew Gilligan, slip into the rut of being a bog standard main-stream media journalist after his glory days attacking Blairs’ Iraq War “dodgy dossier”. He does however have some interesting information in the article, which I am told is backed by those in the know! What do you think?

Here is the Sunday Times article:-

Tommy Robinson’s ‘massive’ jail bonus: publicity

The far-right leader expects to be imprisoned this week for ‘telling the truth about Islam’. It should bring a big payday too

Andrew Gilligan

October 21 2018, 12:01am, The Sunday Times

The far-right figurehead who styles himself Tommy Robinson says he has sacked his lawyers and intends to get himself sent back to jail when he appears in court this week for a contempt hearing.

Former assistants to Robinson said he scooped a “massive payday” when he was jailed for contempt in May, earning huge public visibility and hundreds of thousands of pounds in donations. Robinson was jailed for 13 months after confronting and filming men of Pakistani origin outside a court, where they were on trial for their alleged parts in Britain’s biggest sex grooming gang.

On Friday it emerged that the men were among 20 convicted as members of a gang that subjected girls as young as 11 to an “inhuman” campaign of rape and sexual abuse in Huddersfield. The judge, Geoffrey Marson QC, said the footage, which Robinson live-streamed on Facebook, risked prejudicing the trial and jeopardised other cases against the gang.

It is believed that a return to prison would gain further money and attention for Robinson, 35, who was released on appeal in August pending the hearing on Tuesday. In May, Robinson admitted the contempt and apologised — but he now appears to have recanted.

In a video interview with PI News, an obscure German website, he said: “I sacked my solicitors because they tried to broker a deal where I apologise and I admit guilt, and then if I do that then I go home.

“And I said, I’m never going to do that. . . . They were working for the other side, that’s what I felt. This is a historic moment, and I want to speak and stand by my convictions. So I’m going to stand up in court and read a statement . . . that tells the truth about Islam . . . I’d rather go to jail for the next 25 years than accept guilt for telling the truth . . . I am going to lay the gauntlet down to the government. . . . When you read what I’m going to say in court, I’m calling all of them out . . . I know 100% I am going to jail.”

Robinson was speaking after receiving the “European patriot of the year” award at a conference in Bavaria organised by the hard-right magazine Compact. In his acceptance speech, he said: “German people for too long have lived in the guilt of Adolf Hitler. Do not live in the guilt of Angela Merkel.”

The conference, on September 29, brought together key figures on the European far right, including Lutz Bachmann, the founder of Pegida, Martin Sellner, from the Generation Identity movement, leaders of the Alternative for Germany party and a representative of the Italian leader, Matteo Salvini. Compact has been funded by the Kremlin-created Institute for Democracy and Co-operation.

A former assistant to Robinson, who had access to his Stripe online payment processing account, claimed it contained £2m after his jailing and appeal, thanks to a flood of donations, mostly small amounts. Another former assistant, Lucy Brown, told The Sunday Times in August that Robinson operated a “business” in which “your outrage, valid as it is, will be monetised as such”.

Robinson recently moved into a £950,000 house in an upmarket village in Bedfordshire. The detached, gated property has four bedrooms, a two- bedroom annexe and a double garage.

John Carson, of Carson Kaye, Robinson’s solicitor for the August appeal, refused to comment last night. The firm described Robinson as a client in a tweet two days before the German interview.

It is understood Robinson may have been referring not to Carson but to his barrister in the August appeal, Jeremy Dein QC, who has parted company with Robinson and did not represent him at a brief interim hearing last month.

Dein disputed he was sacked, saying he “withdrew for professional reasons”.

Robinson did not return messages asking for comment. In a video on his Facebook page on Friday, after the rape convictions were reported, he repeated that he would be “convicted on Tuesday”.

Here is the published text of Tommy Robinson’s Witness Statement:-

IN THE CENTRAL CRIMINAL COURT IN THE MATTER OF THE CONTEMPT OF COURT ACT 1981

IN THE MATTER OF STEPHEN YAXLEY LENNON

WITNESS STATEMENT OF STEPHEN YAXLEY LENNON

I, Stephen Lennon, journalist, of an address known to the court and of Luton, will say as follows:

17. I am the defendant in these contempt proceedings, and the Court has served me with two allegations of contempt against me. This is one more than I faced in the Crown Court at Leeds.

18. In relation to the first allegation, breaching the order of the court, which requires as I understand it an intention to interfere with the administration of justice, I would like to say this.

19. Firstly, I would like to assure the court that undermining the court’s authority or interfering with the administration of justice was never my intention. I believed I acted in good faith within the parameters of the section 4 reporting restriction in place. The information I provided was in the public domain, factual and relevant but did not provide any details of the trial proceedings other than what had already been reported previously and was readily available online. I rely on the documents in my bundle as examples of what had previously been reported.

20. When I arrived at Leeds Crown Court that morning I could not obtain any specific details of the reporting restriction order. I do not believe there is a website which holds such details, so I researched online and reviewed the reporting restriction guidelines provided. They state that the court should include details of reporting restrictions on the court listings both online and in court and also provide a notice on the door of the court. My solicitors have photographic evidence to show that the court did not follow these guidelines that day and had no details listed anywhere of a reporting restriction for that case. This is also in the bundle. The only time the notification about reporting restrictions was available was later that afternoon after the Court had convicted me and sent me to prison. Only then did the Court follow the guidelines and list a reporting restriction against the court listings for both the grooming case and my subsequent case.

21. After my previous experience with contempt of court in Canterbury I went out of my way to ensure I would not fall foul of the law again. I privately paid for training with one of London’s leading law firms, Kingsley Napley, to cover all details regarding contempt of court. There is documentation in relation to this in my bundle.

22. On that morning at Leeds Crown Court I had knowledge of the verdicts of the first phase of this grooming trial and many of the specific details discussed in court for this particular trial. I did not talk about these in my livestream on that day. I had understood based on my training that the specifics of the case and the verdicts were off limits for reporting restrictions.

23. Having been unable to obtain any details from the court on the conditions of the reporting restriction I decided to review the guidelines for reporting restrictions. On the Judiciary’s website there is a practical guide aimed at judges and the media on the statutory and common law principles that should be applied with regards to reporting restrictions. The paper was called ‘Reporting Restrictions in the Criminal Courts April 2015 (Revised May 2016)’. In this paper it stated that Courts have no power under s.4(2) of the Contempt of Court Act 1981 to prevent publication of material that is already in the public domain (see page 27 of this document).

24.I followed my training and this guidance to the letter. I did not divulge any of the previous case verdicts, did not detail any specifics mentioned in the trial, did not assume guilt and refrained from entering court property. I even asked the officer outside the court where the court boundaries were and that I was ok to film where I was to which he confirmed.

25. I also followed that guidance document issued on the Judiciary website informing me that I could only reference information that was already in the public domain. Every single thing I said that day was already in the public domain. I actually read charges and names of the defendants from a BBC article which to this day is still live on their website. I also made sure not to film anyone other than the defendants, I was calm and respectful throughout.

10. It is my understanding that there is no individual in the last 60 years that has been sentenced to prison for a publication breach of a reporting order. It would appear to me that my punishment is exceptional. I would ask that I am treated in the same manner as every other journalist who has been charged with these allegations. The journalist Rod Liddle was writing for the Spectator magazine in relation to the Stephen Lawrence murder trial, and when he was sentenced for breaching the section 4 order, and risking prejudice to the trial, was given a fine. Journalists at the Daily Mail and the Daily Mirror published highly prejudicial material on the trail of Levi Bellfield who abducted and murdered an 11-year-old child. This contempt of court led to the collapse of the entire case and discharge of the jury and robbed one of his victims of the chance for justice. The reporters in this instance were not prosecuted and instead their employers were found guilty of contempt and fined £10,000.

11. I have reviewed the transcripts from Leeds Crown Court where the Judge was discussing various reporting order breaches. The judge and the CPS discuss the fact that multiple news sources breached the very same order placed on my trial with some breaching both the reporting orders by mentioning the grooming trial as well as my arrest and prison term. Lizzie Dearden the home affairs correspondent at the Independent actually refused to remove the article when provided with the order stating that the effect of social media voids reporting restrictions, so she could not be held in contempt of court. The CPS and the judge agreed that these breaches of the order were a matter for the Attorney General to review.

14. When I was informed of the blanket order, I offered to delete my video immediately. Despite the multiple breaches of the order by different newspapers that weekend and the flat refusal of Lizzie Dearden to take her article down, not one of those journalists or the editors of those publications, were ever arrested or prosecuted for s.4(2) of the Contempt of Court Act.

15. According to the court transcript the newspaper breaches of the reporting order was a matter for the Attorney General. My case was not referred to the Attorney General for review and instead I was hauled into court immediately, refused my own choice of legal representation, prosecuted, and convicted in a matter of minutes in what the Court of Appeal regarded as a flawed trial. I was then imprisoned for over 2.5 months in solitary confinement until I won the appeal. I was held against my categorisation, moved to the highest Muslim population Cat C prison, subjected to mental torture and constant threats and abuse and had all of my rights removed in the interest of prison safety.

16. It is clear to me that my continued prosecution and heavy-handed tactics from the state is because of ‘who I am’ rather than ‘what I did’.

17. In relation to the second allegation, the strict liability allegation, I would like to say this.

18. It is only since my original trial that there has been an additional charge added suggesting that the contents of my livestream were prejudicial to this case. The case completed, the jury concluded, and the verdicts were given. I would like to state clearly that in the transcript from the original trial the judge discussed my video with Mr Wright QC, prosecution counsel. Having reviewed the content of my video Mr Wright stated in court: ‘here is nothing they could have seen that could in any way prejudice them against the defendants’. Judge Marson agreed on the record.

19. For this reason, (a) I cannot see why I should face two charges when the core of the allegation in front of Judge Marson was the breach of the section 4(2) order, other than because I am regarded as a political activist and the charges are motivated by my political activism, and (b) I do not accept that the material that was live streamed created either a real or substantial risk of prejudice to the Leeds proceedings. The prosecution counsel and the Judge both agreed on the court transcript that my livestream could not have prejudiced the jury.

20. Everything I reported that morning was fair and accurate and published in good faith within the constraints of the judiciary’s guidelines for the media.

21. I will address each point in the allegations drafted by the Advocate to the Court.

22. The first allegation is that I suggested the defendants were involved in wider criminal activity. This is not correct. I was referring to two reports, one on the radio and one in the Huddersfield Examiner which set out the allegations relating to the 29 individuals. I cannot find the original references but a similar report on the BBC relating to the allegations is in the defence bundle.

23. The second allegation is that stating that those of the same ethnicity and religion as the defendants were disproportionally likely to commit the crimes for which the defendants were being tried could prejudice the trial.

24. This statement is factually correct. The Quilliam foundation who are a Muslim run anti extremism think tank have produced a research paper looking at convictions of this type 1 street grooming from 2005 – 2017. This is in the defence bundle. They found that 84% of all convictions were south Asian with the significant majority of those being Pakistani Muslim. All of these victims were white children.

25. Sajid Javid the Home Secretary himself announced on BBC news this year that in these types of street grooming trials the individuals convicted are from a disproportionately Pakistani background.

26. Nazir Afzal is the former head of the Crown Prosecution Service in the north west of England and a lead prosecutor on child sexual abuse and he also publicly stated on Channel 4 News that Asians and Pakistanis in particular are disproportionately involved in this type of street grooming. He also presented these facts in front of Parliament.

26. I merely stated factual insight into the ethnicity and religious make up of perpetrators of these types of crimes. I repeated publicly available research papers from the Quilliam Organisation, testimony from the former head of Crown Prosecution Service in the Northwest and a statement from the Home Secretary himself all three of which are in fact Pakistani Muslims themselves.

27. I do not accept that reporting facts on the ethnicity or the make-up of particular offender groups could be categorised as contempt of court given the number of grooming gang trials currently in progress across the United Kingdom and the commentary on those facts which are widely discussed in the media.

28. The third allegation is that highlighting as significant the sexual references of the abuse that I had elicited from the defendants could prejudice the trial.

29. I asked each of the defendants what their views were on their verdict they were expecting to hear that day. All 3 of them separately made aggressive vulgar sexual references or sexual threats against both my mother and my wife. I did not ask the defendants to comment on their views of my wife and mother, they did this out of the blue. Repeating what they actually said in the video has no relevance or prejudice on the trial itself.

30. The fourth allegation is that I made derogatory comments about the ethnic or religious backgrounds of the defendants.

31. I would like to point out I was not talking about the specific defendants on trial I was referring to reaction I had received by family and friends of previous convicted grooming gangs. By derogatory comments it appears to mean telling the truth that under Islamic law, the “age of consent” coincides with puberty. In Islam there is no set age for marriage. The Islamic Prophet Muhammad, who is said to serve as a role model for every Muslim, is reported by Sunni Hadith sources to have married Aisha when she was six or seven years old, with the marriage consummated when she was nine years old and he was 56 years old. The prosecution may not like to hear the truth but there is no way that sharing the truth and facts about a particular religion on social media can lead to prejudice on a trial.

32. In relation to the fifth allegation, a number of the comments relied on were made by other people, and my comments related to grooming trials generally across the country rather than the particular case (e.g. the exchange at page 8 of the transcript of the livestream related to Rotherham, and Oxford). I made it clear throughout that the trial concerned allegations.

33. The nature and number of these ongoing trials, prosecutions and investigations is highly alarming and I believe it is in the public’s interest to hear the details and know of the complexities and connections amongst the previous prosecutions.

34. The future safety of vulnerable children at risk is my concern here not the perceived prejudice towards the defendants because of their ethnicity or religion. If 29 white Christian priests were on trial on such charges with reporting restrictions, I would feel exactly the same.

35. When I initially went to report on the Canterbury trial I did so in what I felt was the public interest. The police had DNA evidence on all four of the now convicted child rapists, yet the decision was made to grant these individuals bail. They were still running the same take away shop and coming into contact with young school children. One of the defendants absconded to Afghanistan. With DNA evidence on each of the now convicted child rapists it was my belief that they should have been remanded to prison until trial in order to protect vulnerable children in the surrounding area. Instead the decision was made to release them back into the community on bail.

36. The same danger was placed on the children in case in question. The now convicted child gang rapists on trial in Leeds that day were also free to walk the streets on bail. There were 18 different witness statements detailing the rape and torture of those children and yet the justice system decided that they did not pose a risk to the public and granted them bail.

37. Just like the Canterbury case one of these child rapists in the Leeds trial on also absconded before his verdict was reached. I believe he has fled to Pakistan and according to the court transcripts he was last seen leaving his house with a large bag. That is a convicted child rapist free to roam the streets because he was deemed no risk to the public and granted bail.

38. I have previously been charged with a non-violent offence, and I was remanded straight to prison to await trial. At Leeds Crown Court in May this year, the police whisked me from the streets, I was subjected to a fundamentally flawed trial and then sent straight to prison inside 5 hours. This is all whilst the very same system allows alleged child rapists with multiple prosecution witness statements and DNA evidence implicating them in the crime to continue to walk the streets.

39. The court has a duty to the victims and the public to protect them and telling them could help stop ongoing child sexual exploitation and maybe prevent future vulnerable children from falling victim to it.

40. Again I would like to reiterate that undermining the judge, the court, the proceedings, the supremacy of the law or the administration of justice was never my intention, but I truly believe the reporting restrictions on this trial and subsequent connected trials are detrimental to the public and should never have been imposed so the public could hear the details, and use the knowledge of the proceedings to help prevent further cases such as these coming before the courts.

41. The jurors are given a responsibility. They are aware of the consequences of researching the cases they sit on. It should be upon them and we should trust them to do the task with honesty and integrity; it should not be for the public to be kept purposely in the dark just in case they do not.

Dated this 22^nd day of October 2018 _

______________________

Stephen Lennon

Here is a link to the original>>> https://www.scribd.com/document/391403703/Tommy-Robinson-s-witness-statement#fullscreen&from_embed

UK’s Electoral Commission rules that “England worth fighting for!” is OFFENSIVE!

I am in the process of Judically Reviewing the Electoral Commission and have succeeded to get Permission to Issue the Judicial Review and the matter is now proceeding to a full hearing.

Below is the text of my witness statement.

What do you think and how do you rate our chances?

1. “ I make this statement in support of the English Democrats’ Application for Judicial Review. The history of the matter is first reiterated in this statement.

2. Introduction

The Respondent, the Electoral Commission, without any express statutory authority, has arrogated to itself not only an alleged implied power but also an alleged implied duty to alter existing registrations on the Statutory Register of Political Parties. They claim that this power/duty empowers them to make alterations without prior consultation with the affected political Parties or with the public and to also delete existing registrations without notice on the basis of their own views. They further claim that this alleged implied power/duty to delete existing registrations is unrestrained by any Equality Act 2010 duties. The Applicant rejects these claims.

3. Background

The Electoral Commission is charged under the Political Parties, Elections and Referendums Act 2000 with being the Registrar of the Statutory Register of Political Parties.

A political party which is registered with the Electoral Commission can stand in elections and use one of twelve Descriptions which are registered with the Electoral Commission on its register and use a registered Emblem (aka a logo), but if not registered, or a Description is not registered, or the Emblem is not registered, then that cannot be used on any ballot paper in any election.

The removal of a Description or Emblem from the Register therefore means that the Description or Emblem cannot be used on any ballot paper. Removal therefore, if cavalierly used, has potentially very draconian effect on the ability of a Party to take part in democracy and also curtails the democratic choice available to the electorate.

When it was first set up the Electoral Commission faced accusations that the only reason why the then Labour Government had created such a body was for partisan advantage against the Conservative Party, in particular to try to prevent Lord Ashcroft from continuing to fund the Conservatives.

Perhaps in response to this, the Electoral Commission initially approached its work in a sensitive manner and, so far as the Applicant is aware, did not seek to over-regulate or bully the registered Parties. As part of this approach, if paperwork had not been returned or completed in time, the Electoral Commission generally politely reminded the Applicant of whatever needed to be done.

The Applicant mentions the context of the creation of the Electoral Commission being Labour partisanship. Also the original commissioners themselves were all Establishment figures with, it seems to the Applicant, a distinct bias towards Labour. That approach seems to continue and, in particular in the context of this application, the Party whose interests being protected by the Electoral Commission’s heavy handed approach was Labour in the Batley and Spen by-election. The Applicant is suspicious that this advantage was given deliberately as a product of continuing partisan bias.

The Applicant has already experienced the Electoral Commission’s new heavy handedness, as without prior consultation the Applicant’s Emblem was removed from the Register on the specious grounds the Emblem had more than six words on it and also had a “tick box” for an English Parliament, which is one of the core campaigning issues of the Applicant, as part of its Emblem. This was an Emblem that had been registered for at least 10 years and had given rise to no known complaints or confusions, yet the Electoral Commission took upon itself to remove the Emblem because they decided to change the way they looked at Emblems, without any statutory authorisation for doing so. The Applicant applied for Permission to Issue Judicial Review and obtained it. The Learned Judge in that case pointed out that the Applicant’s case was clearly arguable because there is no expressed statutory authority for the Electoral Commission’s new found regulatory activism and the Order was included in the supporting Bundle.

After the murder of the Labour MP, Jo Cox, in her constituency of Batley & Spen, the Labour Party did not trigger by petition to the Speaker the requisite by-election for months, in order, no doubt, to proceed with its Leadership contest. In the interim the Establishment parties, contrary to all previous practice, announced that they were not going to stand against Labour.

However other parties began to announce that they were going to stand, the first being Liberty GB.

It is the Applicant’s understanding that following the announcement by Liberty GB that they were going to stand, the Electoral Commission unilaterally and without prior consultation removed most of their registered Descriptions; no doubt relying upon the same alleged power/duty that is in contention in this Application. The Applicant believes that the Electoral Commission may well have removed other Descriptions from other Parties as they announced that they wished to stand.

In the case of the Applicant the removal occurred once the Applicant stated that a candidate for the English Democrats would be standing, which was done after a proper period of respect and mourning and after the funeral of Jo Cox.

Following that announcement the Electoral Commission removed the long registered description which contained the words “England worth fighting for!”

The Applicant accepts that there are probably very few people working for the Electoral Commission who are patriots and that they may not like the idea that people will fight for their country, but it is contended that politically partisan Left-Liberal opposition to patriotism does not justify the Electoral Commission in finding that such a description is legally “offensive”, nor, it is contended, does the Electoral Commission have the latent power or latent duty that it contends for.

4. Precis of Grounds of this Application

(i) The Electoral Commission does not expressly or impliedly have the power to retrospectively alter Registered Parties details without agreement from the Registered Party.

(ii) There is no implicit duty for the Electoral Commission to change registrations in accordance with its changing perceptions, or opinions, or otherwise.

(iii) Any proposed amendment to the Register or other changes should only be done after consultation with the relevant registered party and perhaps also only after a public consultation if appropriate, in a manner that is similar to the Commission’s process in registering changes which have been applied for by a Registered Party or other registrant.

(iv) The exercise of any powers, and especially any statutory powers, to alter the Register by the Electoral Commission is subject to the statutory requirement not to discriminate directly or indirectly, contrary to the Equality Act 2010, either on the grounds of nationality, national origin, national identity (in this case specifically “English”) or on the grounds of philosophical belief (in this case specifically “English nationalism”).

5. The Decision

The decision to remove one of the Party’s “descriptions” which is challenged in these proceedings was notified to the applicant in the Electoral Commission’s letter dated the 7th September 2016.

The notification from the Electoral Commission was ex post facto and without prior consultation and stated:-

“I am writing to inform you that under the Commission’s duty to maintain the register of political parties, descriptions and emblems in accordance with the requirements of the Political Parties Elections and Referendums Act 2000 (PPERA), we have conducted a review of your party identifiers. This has resulted in one of your party descriptions being removed from the register for reasons of not meeting the statutory requirements of s.28A PPERA.

The review was carried out as part of the Commission considering the register in the context of the forthcoming Batley and Spen UK Parliamentary by-election (date to be announced), taking into account the likely impact on voters there of the tragic circumstances that have caused the need for a by-election. Your party has announced that they will be standing a candidate in this by-election.

The law requires the Commission to form an opinion on whether an identity mark would be ‘offensive’ and we consider this test in terms of voters exercising their democratic right to vote without encountering offensive material on the ballot paper.

The review identified that the following registered party description is in the opinion of the Commission offensive.

“English Democrats – England Worth Fighting For!”

The Commission has removed the above description from the register of political parties for Great Britain.

We considered the description offensive in the context of the forthcoming by-election in that the description could reasonably be perceived as a call to, or condoning, violent means to further a particular political view.”

6. The Challenge

This was challenged in the English Democrats’ letter of the 12th September, in which the English Democrats stated:-

“For the record we do not accept that the Electoral Commission has the legal right to do this to existing registrations. Also your decision is manifestly absurd and unreasonable and also repugnantly offensive to any patriotic English people.”
A protocol letter was sent on the 12th September 2016 which challenged the removal decision on the grounds that the registered “description” has remained unchanged since it was registered. There is no relevant statutory provision or requirement for the Electoral Commission to disallow our description once registered and accordingly it is ultra vires for the Electoral Commission to do so. The English Democrats object to any change or removal of its description.

The Electoral Commission responded in their letter of the 15th September:-

“The Commission and your party are not in agreement on this matter. That is of course regrettable, but I trust you will understand that the Commission must discharge its statutory role on party registration in the manner it considers proper and lawful.”
And the Electoral Commission further responded on the 21st September:-

“6. The Electoral Commission (‘the Commission’) has considered carefully each point in the letter before claim. The Commission disagrees that its decision is wrong in law on the grounds stated or at all. The Commission is confident that the decision was made properly in accordance with the relevant statutory tests, was a reasonable one and that it has given the Party sufficient explanation of its decision in its letter of 13 September 2016. The Commission will strongly defend any challenge to its decision on the basis of the matters set out in the letter.

Legislative provisions in PPERA relating to party registration, and how the Commission carries out its role

7. Under section 23 PPERA, the Commission is responsible for maintaining the register of political parties that intend to contest all relevant elections. The Commission’s duties in this respect are not limited to the consideration of an application for registration only and the duty is a continuous one.

8. If a political party wishes to use a description on a ballot paper, that description must be registered under Section 28A PPERA in accordance with the statutory criteria set out in. One of the statutory criteria, section 28A(2)(c) requires that the Commission shall not register a description which in the Commission’s opinion is offensive.

9. In discharge of its function to maintain the register in the context of the Batley and Spen by-election expected to take place on 20 October 2016, the Commission carried out a review of the register to ensure it continued to meet the legislative requirements. The outcome of that review was that in the Commission’s opinion the description was offensive and fell within the section 28A(2)(c). Accordingly it was required to discontinue the inclusion of the description from the register.

10. The Commission notified its decision to the Claimant on 13 September 2016. In that letter the Commission explained in sufficient detail its response for the discontinuance. It explained that it had undertaken a review of the Register in the context of the forthcoming Batley and Spen UK Parliamentary by-election. It explained that the review took account of the tragic and violent circumstances leading to the death of the sitting MP Jo Cox which necessitated a by election and the likely impact on voters in that constituency of this. The review took account of the fact the claimant had confirmed its intention to stand a candidate at that election and thus the potential of using the description in the by election. The review considered that the existence of the description of the ballot paper as possibly a call to violence to further a particular political view could be regarded as offensive.

11. As a result the description was removed from the register. Not to remove the description would have resulted the Commission being charged with failing in its duties under section 23 PPERA and the non-compliance with s 28(A)(2)(c).

12. The Claimant states that the description was not offensive yet provides no support for this assertion. In any event, the Commission is required to form its own view on whether a party identifier is offensive and cannot substitute its opinion with that of another.

13. The Claimant states that the removal of the description amounts to unlawful discrimination against ‘English nationalism and against all patriotic individual English people to claim that it is offensive’. The Claimant’s opinion on discrimination cannot be taken into account by the Commission for reasons given above in paragraph 12. Further discrimination is not part of any statutory test set out in section 28 (A)(2) PPERA and accordingly must be disregarded as an irrelevant factor in deciding whether the description was allowed to continue on the register.

Decision making process

14. The Commission’s position is that no consultation or appeal with a Party is required or would serve any purpose where the continued existence of a description on the register can reasonably be regarded as unlawful in the context of the forthcoming by elections. This is not a case where the Commission was proposing a change of policy meriting consultation, this was a case where the Commission had no option but to discontinue the inclusion of the offensive description in order to meet the requirements of section 23 and 28(A)(2 PPERA. As regulator, the Commission is required to maintain a register of political party names and associated descriptions that complies with the law. A delay by the Commission in taking its decision in order to provide an opportunity of appeal in these circumstances is not a ground that would justify a departure from its statutory and regulatory duties.

15. The decision does not affect the Claimant’s ability to stand candidates under its party name, using the party name or any of the other party descriptions or emblems in this or future elections. It further does not prevent the Claimant or its candidates from expressing views as part of any campaign or how they present their campaign material.

16. The Commission has advised the Claimant that it may register another description and it has waived the fee for this should the Claimant apply to do so before the end of the month….

20. The letter before claim shows no arguable basis upon which a successful legal challenge may be brought. Accordingly, the Commission will strongly defend any challenge to its decision on the basis of the matters you set out in your letter before claim and reserves the right to seek a court order for costs in any such challenge. In light of the above, we invite you to reconsider your position.
7. The Response

The Applicant therefore responded on the 27th September as follows:-

“Your response clearly flies in the face of the Judge’s decision in the previous Judicial Review Permission to Issue Application (a copy of which is enclosed herewith for your ease of reference), in which it was made clear that our point was self-evidently arguable, in that you have no explicit statutory authority for altering, in effect retrospectively, the Register. This would be hardly surprising to any English lawyer since it is a fundamental precept of English Common Law. It is also a fundamental Tenet of Administrative Law that you (consult) prior to making a decision.”

The Commission responded on the 5th October by email:-

“I acknowledge receipt of both of your letters dated the 27th and received by the Commission on 29 September 2016 which will be considered by the Commission.”
The Commission responded again on the 18th October 2016:-

“We do not share your view that there is an issue of retrospectivity and do not accept your suggestion that we have altered the Register retrospectively. Rather the issue is whether there is a power to alter the register. The Commission is satisfied that the legislation provides such a power particularly that the legislation sets out a duty on the Commission to maintain a register that is compliant with the law. The full Response is set out in tis Pre Action Protocol Response letter of 21 September 2016.

You refer to a need to obtain consent prior to taking a decision. The Commission is not required – nor would it be appropriate – to obtain consent prior to the discharge of its public law functions. Again, the full response is set out in my letter of 21 September 2016.

You refer to a previous claim for judicial review which you did not wish to pursue as you withdrew your claim. Quite properly we have considered the issues you raised in your letter before claim on its own merits and without reference to and independent to your previous claim. I emphasise the decision taken to remove the description in this case was taken in the context and circumstances set out in the letter to you of 7 September and further set out in Pre Action Protocol Response letter of 21 September and has no bearing to the matters set out in your previous claim.”

8. Costs

a) The Costs of the Application for Permission

As regards the costs of the Application for Permission to Judicial Review the Applicant sought agreement to issue in its letters of the 27th September:-

In the circumstances we respectfully request that you agree Permission to Issue Judicial Review should be granted. In the absence of such agreement we propose to place our letter before the Court with the request that you be ordered to pay Indemnity Costs and 10% additional sum on such costs pursuant to Part 36 of the Civil Procedure Rules.”

and 24th October:-

“The point is that in our last Application for Judicial Review is that the Judge made it clear that the question of the legality of your alleged power or duty to alter the register is arguable. It follows that permission to issue Judicial Review in this case will be granted. It is on that basis that you should consent to permission to Judicial Review being issued. Failure to do so is, with respect, an improper misuse of public funds on your part. Accordingly please reconsider our offer.”

In the premises the Applicant sought Indemnity costs of the Application for Permission.

b) Judicial Review Costs

Further to avoid costs threats from the Electoral Commission with the aim of trying to deter a challenge by threatening attrition the Applicant seeks a cap on the recoverable costs on the basis that this case should be treated as being a “Small Claim” with regards to the recoverability of legal costs and wrote accordingly on the 31st October:-

“Leaving that to one side, will you agree a cap on your recoverable fees in the event that you successfully defend the Judicial Review?

We would propose that the matter be treated from the costs point of view as a Small Claim with court fees and fixed fees being the only recoverable costs. Please let us have your response.”

The Electoral Commission responded on the 7th November:-

“Where the Commission is successful in litigation, it is our policy to seek the full amount of costs recoverable.

We do not agree to any cap on the Commission’s costs in the event that you issue proceedings”.

The Applicant therefore seeks an Order capping the Recoverable Costs of the Judicial Review.

9. Discrimination

All statutory bodies, including the Commission, are required to have regard to the Equalities Act 2010. The Commission implicitly admits it has not done so in claiming exemption without quoting any authority for such an exemption.

The decision challenged herein is directly or indirectly discriminatory against the English Democrats as an English “national” organisation and against English nationalism as a system of belief. By comparison it is inconceivable that the Commission would take any equivalent action against Scottish or Welsh nationalists. This is not therefore a “reasonable” decision from a legal point of view as it breaches discrimination law.

Furthermore the Commission appears to have been acting in a manner which was calculated both to advantage Labour in the Batley and Spen By-election and disadvantage any challengers as they not only took the decision herein challenged against the Applicant but also did likewise against the other parties that declared an intention to stand in that by-election.

10.The European Convention

In addition to the general English legal and constitutional points it seems for completeness worth mentioning that an attempt to change an existing provision in what amounts to a “licence” would appear to be prima facie in breach of Article 1 of Protocol 1 of the European Convention of Human Rights (the right to peaceful enjoyment of possessions). It appears that there is here an attempt to remove a licence to use an existing emblem without any of the justifications required under this Protocol. Nor would there appear to be any express legal provision which any presumed derogation from the general principles of the Protocol could apply to.

11. I now turn to matters subsequent to the issue of the Application for Permission. When this matter came on for its first oral hearing it was listed before Mr Justice Ousely on 29th June 2017 who pointed out that the Respondent, the Electoral Commission, on the basis of their case arguably should have restored the Description that they had removed once the alleged circumstances for its removal, namely the Batley & Spen By-election, had been concluded. He therefore directed that the Respondent should file a Witness Statement explaining why they had not reinstated it, which is why the statement of Mr Posner was filed. This statement adopts inconsistent claims:- 1) that there is no power for the Electoral Commission to restore a Description that they have removed without a formal application by the English Democrats. Whereas by contrast 2) they are claiming a power to remove it without a formal application or indeed any application or any consent by the English Democrats, indeed without any consultation, or prior notice, or right of appeal.

12. I would refer to the relevant correspondence for this period up until the next hearing which was listed before Mr Justice Gilbart on 21st September 2017. He granted permission to Judicial Review pointing out that, not only were the Electoral Commission claiming the right to remove Emblems and Descriptions as they have done in the case of the English Democrats without prior notice, consultation, right of appeal, or what I would suggest are the rules of natural justice, but seemed also to have oddly decided to define the word “fighting” as only meaning violence. In fact we all talk about “fighting Cancer”, “fighting electoral campaigns”, “fighting the good fight” for Christians, “fighting for life” for the seriously injured, etc., etc.

13. Mr Justice Gilbart granted permission to Judicial Review on the grounds of :-

(a) Vires;

(b) Rationality; and

But he also wasn’t allowing the separate ground of Discrimination as that was subsumed under the grounds of rationality. Of those three permitted grounds I would therefore say as follows:-

14.Vires

a) The Applicant clearly stated that we considered that the decision both in this case and in the previous case relating to the removal of the English Democrats long-standing emblem that there were decisions that were made ultra vires because there is no express power to vary existing registrations without the consent usually given in the form of a formal application and payment of a fee to alter the registered emblem, or descriptions.

b) There is of course a very limited right of refusal to register emblems or descriptions based on whether it is probably thought that the proposed registration was illegal or if it would create confusion amongst voters. The former point is obvious that we could not have parties able to register descriptions that were, for example, a clear incitement of violence against a defined group. So far as the confusion point is concerned, this is somewhat more subjective. Therefore the decision may not be taken based upon fully objective evidence, but it naturally arises from the fact that registration of party names is only considered necessary as a result of what seemed to be a deliberate attempt to mislead voters into voting for the “Literal Democrats” rather than the Liberal Democrats at an election back in the late 1990’s. Prior to that incident there was no registration of party names, descriptions or emblems. There is therefore no traditional common law principle that applies that would support the Electoral Commission’s position.

c) The basic nature of English law is that an Englishman or Englishwoman has the unfettered right to do anything that is not expressly forbidden by law, which of course is in stark contrast to the so-called “civil” law systems on the continent which are derived from the tyrannies of Justinian’s Constantinople or Napolean’s France. “Civil” Law prohibits “citizens” from doing anything where they do not have the State’s permission to do it. Therefore in England every statute is a removal of an aspect of a citizen’s liberty and that is the basis of the common law rule that all such restrictions have to be express. The Electoral Commission is claiming the right to take away not only the pre-existing common law right of political self-description, but also even the rights which have been accrued by registration without there having been anything expressly stated in the statute which says they have the right to do that.

d) The Electoral Commission are not the police and therefore do not have police responsibilities or duties or systems of accountability. This purported right is therefore in my opinion somewhat equivalent to the registers kept by local planning authorities of registered planning permission. If the planners purported to be able to remove approved planning rights because the planning permission no longer fitted their current planning guide-lines, that would be a clear cut and illegal abuse of their position. Of course planning law was originally imposed upon for property owners to expropriate the general common law right of development of land in an analogous way to the Electoral Commission’s expropriation of the Common Law rights of political descriptions and political emblems which have been part of electioneering in England since at least the time of John Wilkes. The Electoral Commission are furthermore claims that the right to make such decisions based upon, in effect, their own personal and subjective feelings. There was so far as I am aware no evidence taken or any other objective method or even any proper criteria of assessing the description which was applied in this decision making process.

15.Rationality

a) I believe that the Electoral Commission have acted out of their own personal political prejudices and not on any statutory or even objectively justified basis. The English Democrats are not by any common-sense criteria “extremist”, or even in any reasonable sense “far-right”. On the contrary we are democrats who want to see England’s political future and democracy properly protected. We campaigned for many years for “an English Parliament, First Minister and Government with at least the same powers as the Scottish ones within a federal UK”. In the last few years we have shifted towards campaigning for English Independence to put us fully on a par with the independence campaigns of the Scottish National Party for Scotland and Plaid Cymru for Wales. The English Democrats Party have never campaigned in a way that is anything other than “fighting” the political campaign in the normal, proper, legal and democratic way. Any suggestion to the contrary from the Electoral Commission is bitterly resented. Indeed it wouldn’t be too much to say that such an imputation is downright offensive!

b) The linkage with the Batley & Spen By-election is a little difficult to understand on any rational basis since the murderer of Jo Cox is of Scottish origin and is alleged to have said “Britain First” whilst attacking her. He also appears to be somebody with a long history of mental illness and to have been acting entirely alone. It would therefore seem that the English Democrats’ Description which was removed (“England worth fighting for!”) would be something that Thomas Mair would have (perhaps violently) have opposed!

c) The English Democrats Party is a democratic nationalist party and there is no instance of English democratic nationalists engaging in political violence.

d) In fact the parties that have engaged in political violence are either of the far-left or of far-right British nationalist parties.

e) It might be said that the English Defence League has been involved in some fighting. I would say firstly that the English Defence League, despite the word “English” being used, is not really about English nationalism at all, its focus and the focus of its former Leader, Stephen Lennon aka “Tommy Robinson”, is campaigning against Islamisation and Islamists and of course Islamic linked rape gangs, etc. which the authorities had simply failed to deal with. At no point, to my knowledge, has any representative of the English Defence League talked in terms of calling for an English Parliament or for English independence.

f) Indeed the English Defence League’s spokesmen when they do talk about national politics at all are very prone to confusing the word “English” with the word “British” which no English nationalist would do.

g) It should also be noted that despite some loutish and boorish behaviour by EDL demonstrators it has almost always in fact been, despite misleading media reports to the contrary, the internationalist/Marxist far-left !Antifa! (anti-fascist) activists who have been the attackers and who seem to set out with the intention of “fighting” in the way contended for by the Respondent herein.

h) It is a curiosity that the far-left should be in support of Islamism when it seems obvious from a common-sense point of view that Islamism is a profoundly conservative form of Islam and therefore in most respects the most hostile to the far-left. However the Far-Left seem to welcome anything which they think may undermine the Nation State or bring revolution to the “West”.

i) As can be seen from the correspondence I agreed to do an application to re-register the Description “England worth fighting for”. This was agreed on the basis that the Respondent would not take the point as to whether there was any implicit concession that a formal application was required. In fact they did exactly what I was anticipating which was to confirm their irrational stance that it is “offensive” to say that “England was worth fighting for”.

j) In my view this is a very standard left-wing position in which the aim of their politics is to undermine the idea of nations and of nation states. On the basis of my experience with the Electoral Commission I thought it highly probable that they would consider that the very idea of England being worth trying to protect would be “offensive”.

k) In my respectful opinion that is not a proper position for the Electoral Commission to take in law. As a bureaucracy given charge of dealing with the registration of political parties, they are not entitled to take into account their own political biases. They should have to behave in a manner that has objective justification. They have taken into account matters that they are not entitled to take into account and have failed to deal with this whole matter on the basis of objectivity and rationality rather than bias and prejudice.

l) The point of introducing Tony Linsell’s witness statement on English nationalism is to point out the essential reasonableness and common-sense basis of English nationalism which to be fair 50 years ago would have simply seemed to be pointing out things that were common-sense. Then of course that was before the Marxist’s Lefts “long march through the institutions” which has enabled their hatred of nation states and of patriotism to cloud the issue.

m) The approach taken by the Electoral Commission is therefore direct or indirect discrimination, since it is directly against English nationalists but it is also indirectly against all English people, since English people are far more likely to feel that they are in favour of campaigning, fighting, etc. for England than other types of people would be.

n) The Electoral Commission’s letter of refusal is dated of the 19th September 2017 and is stated to be from Josh Dunne, “Senior Registration Advisor”, inter alia, it says:-

“I regret to inform you that we have refused your application to register “English Democrats – England worth fighting for!”.

The law requires the Commission to form an opinion as to whether a party description is offensive and to refuse to grant an application for such a description to be registered. We came to the decision that your description is OFFENSIVE.

We have taken this decision after careful consideration. We note in particular:-

1. A current social and political context in which politically or ideologically motivated violent attacks have occurred in the UK.

2. The link is the description between “fighting” and “England”; the phrase “fighting for” is used in a different context in the description than other instances of its use on the register. We note that there have been instances of violence that have been linked to English nationalism.

We concluded that the description could likely be read as condoning potentially violent action to further a political aim, and that voters would find that offensive.”

o) No Instances are given which corroborate the Electoral Commission’s bald assertions of violence or any threat of violence as regarding English nationalists. That is because there are none.

p) The decision is explicitly taken because of the linkage between fighting and England which is not only irrational, discriminatory and offensive to English Nationalists, but is even more explicitly so when it is considered alongside what other descriptions mentioning fighting have been allowed on the Electoral Commission’s register.

q) I had a search done on the Electoral Commission’s website on the 14th October 2017 to see other usages of the word “fighting” or “fight” which there are registered.

r) The search used the Electoral Commission’s own search engine, so I do not vouch that this is an exhaustive list. The one that provides the clearest comparator is the Welsh “People First” Party who have a reported description:- “Fighting for Wales”. It would appear that using the meaning contended for by the Electoral Commission that fighting only means violence that “Fighting for Wales” is permitted but “Fighting for England” is not. I would submit that no clearer instance of illegal discrimination contrary to the Equality Act could be found. It would seem that the Electoral Commission are happy for Welsh nationalists to fight for Wales but not English nationalists to fight for England – despite the fact that it is actually undeniably true that Welsh nationalists have actually used violent means but English nationalists have not.

s) The extreme leftist Revolutionary Communist Party Britain (Marxist Leninist) is permitted the description:- “Fight for an anti-war government”. Leaving aside the irony implicit in such a description it would seem that the Electoral Commission are happy to have people violently fighting for an anti-war government. It would appear that the Electoral Commission are happy for communists, who after all have historically killed hundreds of millions of people, to fight for their sort of government but not English nationalists to fight.

t) Then we have the Socialist Equality Party which are allowed two descriptions mentioning fighting:- “Your future your fight!” and “Join the fight for social equality!”.

u) Then we have the Scottish Socialist Party which has been allowed the description of:- “Fight the cuts”.

v) Then the Marylebone Residents Party which has the description:- “Fighting for spaces for people”.

w) Even the British National Party is allowed to mention fighting. In this case:- “Fighting unsustainable housing because we care”.

16.Lack of Consultation

a) In neither this case, nor the previous one relating to our emblem, was there any prior consultation or prior notification before the decision to remove was taken. Also no right of appeal or of recommendation has been offered. In my view not only have the Electoral Commission failed to act reasonably and within the proper bounds of their discretions, but also their action is not fair. They are asserting a right to make decisions without there being any effective complaints procedure which allows an aggrieved party to pursue a substantive challenge to the conclusions that they come to, only because the Electoral Commission is implicitly assuming that their decision making processes are so effective that their decision will always in effect be unimpeachable. I do not consider that to be either a rational or a fair process. It is unfair for there to not be any ability on the part of the English Democrats or any other party adversely affected by the Electoral Commission’s use of their purported power, to challenge the decision therefore the procedure is unfair.

b) In this case there is no express power conferred by Parliament. The Electoral Commission is arguing for an implicit power from which it would follow that if there was such an implicit power there should also be the usual presumption that such power would be exercised in a manner which is fair in all the circumstances. Since there is no express statutory basis of the power or discretion, the Electoral Commission are, I believe, in effect arguing for an implied power of discretion which is untrammelled and unrestricted by any procedural requirements either prospectively, of consultation or retrospectively either of appeal or of making representations to reinstate. This is why they gave no opportunity to the Applicant to make representations either before or after the decision was taken and also did not pro-actively give any indication either that such a decision was going to be made or what items were allegedly being weighed up in making the decisions. This is therefore an extreme case of non-consultation by an administrative statutory body.”

Complaint made about Judge who claimed ‘we are LUCKY to live in a multi-racial society’!

Complaint made about Judge who claimed ‘we are LUCKY to live in a multi-racial society’!

I read with dismay the reported remarks of District Judge Emma Arbuthnot in sentencing Viscount St Davids and I have therefore written the following complaint to the Lord Chancellor:-

Lord Chancellor’s Department

Judicial Complaints

Ministry of Justice

102 Petty France

London SW1H 9AJ

Dear Sir

Re: Complaint against District Judge Emma Arbuthnot

Politically biased sentencing remarks

I am making this complaint on behalf of the English Lobby which is a ‘not for profit company’ whose purpose is to stand up for English values and the English Nation.

We read with dismay the reported remarks of District Judge Emma Arbuthnot in sentencing Viscount St Davids. We do not know anything other than what was reported in the newspapers, internet and broadcast media about the offences for which Viscount St Davids was convicted and sentenced, but it is a fundamental principle of English Justice that Judges are neither politically biased, nor give the appearance of being politically biased.

Judging from the reported remarks this was not the case with this District Judge. She used the opportunity to grandstand her personal political views before the national media in a case with considerable press interest because of person being sentenced was a member of the aristocracy. In these circumstances the District Judge is quoted as having said:- “this multi-racial society we are lucky enough to live in.”

This is not a statement of law, on the contrary this remark is blatantly politically loaded and partisan. It is not a remark that everyone would agree with, but it is simply an expression of the current Establishment orthodoxy of liberal multi-culturalism. Clearly she would have been well within her rights to both hold such an opinion and also to express it both as a private citizen and in most public offices. This is not the position however for a Judge holding forth from the judicial bench in Court.

From her other remarks in the case one suspects that the District Judge was also in the minority on the issue of Brexit which seems to have been part of the matrix of the alleged offences.

In short it is quite wrong for any Judge either in sentencing or in convicting in any court to give voice to their personal prejudices and political opinions however orthodox. In this situation the District Judge has brought discredit to her office and should be disciplined. If this is part of a pattern of behaviour by her, then perhaps she should be dismissed.

Yours faithfully

R C W Tilbrook

Here is the English Lobby’s press release:-

PRESS RELEASE

The English Lobby complaint made about the Judge who sentenced Viscount claiming we are LUCKY to live in a multi-racial society.

The English Lobby has written a letter of complaint to the Lord Chancellor to discipline District Judge Emma Arbuthnot for her blatant political bias and discriminatory prejudice in making the above remark. Whilst this remark is fully in accordance with the increasing prevalence of Judges who are multi-culturalist liberals, it is nevertheless a blatant breach of an English judge’s constitutional and legal duty to be impartial and politically neutral.

Robin Tilbrook, the Director of the English Lobby said:- “Some people think like the District Judge that “this (is a) multi-racial society (which) we are LUCKY enough to live in”.” Many others do not welcome it or accept it and others actively oppose it, so for the District Judge to use her opportunity of maximum publicity in a high profile case to make a blatantly political point was and is an abuse of her judicial position for which she should be disciplined.

Let us see if the new Lord Chancellor, David Lidington MP, knows his duty and reins in this blatant display of political bias by a Judge.

If you feel the same way about this please use the address above to put in your own complaint!

BREXIT – BEFUDDLED AND BE-JUDGED!

The High Court of Justice of England and Wales has made a preliminary and sensational ruling on how Brexit must be approached. The case, in addition to being politically significant, is of course legally and constitutionally significant as the High Court did pull out all the stops knowing that that was the case, with no less than three of the most senior judges in the England and Wales jurisdiction sitting on the case; the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sales. The case itself is :- The Queen on the application of (1) Gina Miller & (2) Deir Tozetti Dos Santos – and – The Secretary of State for Exiting the EU. It can be found on the court website here:- https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

The case is worth reading if you are at all interested in the law of Constitution.

There is however a potted summary here for those less interested in legal details >>>

https://www.judiciary.gov.uk/wp-content/uploads/2016/11/summary-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

Here is the text of the Summary:-

“R (Miller) v Secretary of State for Exiting the European Union

Summary of the judgment of the Divisional Court

References in square brackets are to paragraphs in the judgment.

The Question

1. The issue before the court is whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament. This is a pure question of law. The court is not concerned with and does not express any view about the merits of leaving the European Union: that is a political issue.

2. It is accepted by all sides that this legal question is properly before the court and justiciable: under the UK constitution, it is one for the court to decide [5]. It turns on the extent of the Crown’s powers under its prerogative [explained at 24-29]. The Government accepts that neither the European Union Referendum Act 2015 nor any other Act of Parliament confers on it statutory authority (as distinct from the Crown’s prerogative power) to give notice under Article 50 [67-72, 76 and 105-108].

3. On 1 January 1973 the United Kingdom joined what were then the European Communities, including the European Economic Community. Parliament passed the European Communities Act 1973 (1972 Act) to allow that to happen since it was a condition of membership that Community law should be given effect in the domestic law of the United Kingdom and primary legislation was required to achieve this [1 and 36-54]. The European Communities have now become the European Union.

4. Pursuant to the European Union Referendum Act 2015 a referendum was held on 23 June 2016 on the question whether the United Kingdom should leave or remain in the European Union. The answer given was that the UK should leave [2].

5. The process for withdrawal is governed by Article 50 of the Treaty on European Union, which states that once a Member State gives notice to withdraw there is a two-year period in which to negotiate a withdrawal agreement. If no agreement is reached in this time then, subject only to agreement to an extension of time with the European Council acting unanimously, the EU Treaties shall cease to apply to that State. The Government accepts that a notice under Article 50 cannot be withdrawn once it has been given. It also accepts that Article 50 does not allow a conditional notice to be given: a notice cannot be qualified by stating that Parliament is required to approve any withdrawal agreement made in the course of Article 50 negotiations [9-17].

6. Therefore, once notice is given under Article 50, some rights under EU law as incorporated into domestic law by the 1972 Act would inevitably be lost once the Article 50 withdrawal process is completed [57-66].

The Constitutional principles

7. The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament it has been established for hundreds of years that the Crown – i.e. the Government of the day – cannot by exercise of prerogative powers override legislation enacted by Parliament. This principle is of critical importance and sets the context for the general rule on which the Government seeks to rely – that normally the conduct of international relations and the making and unmaking of treaties are taken to be matters falling within the scope of the Crown’s prerogative powers. That general rule exists precisely because the exercise of such prerogative powers has not effect on domestic law, including as laid down by Parliament in legislation [18-36].

8. In the present case, however, the Government accepts, and indeed positively contends, that if notice is given under Article 50 it will inevitably have the effect of changing domestic law. Those elements of EU law which Parliament has made part of domestic law by enactment of the 1972 Act will in due course cease to have effect [76-80].

9. The central contention of the Government in the present case is that Parliament must be taken to have intended when it enacted the 1972 Act that the Crown would retain its prerogative power to effect a withdrawal from the Community Treaties (now the EU Treaties), and thereby intended that the Crown should have the power to choose whether EU law should continue to have effect in the domestic law of the UK or not [76-81].

Conclusion

10. The Court does not accept the argument put forward by the Government. There is nothing in the text of the 1972 Act to support it. In the judgment of the Court the argument is contrary both to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers [82-94, 97-104]. The Court expressly accepts the principal argument of the claimants [95-96].

11. For the reasons set out in the judgment, we decide that the Government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.”

Following the release of this Judgment there has been an attack on the political and demographic origins of the three Judges, all three of whom are the product of Labour’s Lord Derry Irvine “Reforms” to the selection and promotion of the judiciary. Lord Irvine expressly said these had been engineered to “ensure that no-one with reactionary views could be appointed or promoted within the judiciary”. This expressed objective has clearly been achieved with these three judges. The

Lord Chief Justice background as an active Europhile was amply exposed in the Daily Mail article here >>> http://www.dailymail.co.uk/news/article-3903436/Enemies-people-Fury-touch-judges-defied-17-4m-Brexit-voters-trigger-constitutional-crisis.html

In the original version of the article, the Daily Mail also reported the Master of the Rolls, Sir Terence Etherton as being the first “openly gay” senior Judge and also as having married his boyfriend in “a traditional Jewish marriage ceremony”.

Lord Justice Sales was exposed as being one of Lord Irvine’s personal protégées.

So it appears that we can be reasonably confident of the personal views and political prejudices of all three judges!

From a lawyer’s point of view there was therefore, particularly with the Lord Chief Justice, good grounds for applying the approach which was adopted by the House of Lords in the Pinochet case to Lord Hoffman who had ruled based on his own political prejudices. The case can be found here>>> http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990115/pino01.htm

The most extraordinary aspect of this fiasco is that any reasonably competent country solicitor would have advised the Government that where a challenge was being made to legal rights to take action (in this case the Government giving notice under Article 50 of the Lisbon Treaty) the obvious thing to do is to get on with it and give the Notice.

This of course would have made it pointless continuing with the court case. The Notice would already have been accepted by the European Union and the process of leaving the EU would therefore be underway regardless of what any court had to say. In such cases the courts are very unwilling to give rulings on what are described as “moot points”. It follows that the fiasco is a product of delay and incompetence within the May Government.

Turning back to the Judgment, it is a Judgment that is more dubious on previous legal authority than it sounds as it is phrased in what has been described as “muscular” language. I would also respectfully suggest it seems to be over certain of its legal position. This is however partly a result of the incompetence of the Attorney General in agreeing that the case was “justiciable”.

As an example of arguments that show that the Judgment is more dubious than it seems, see here for an academic analysis >>> https://publiclawforeveryone.com/2016/11/04/the-high-courts-judgment-in-miller-a-brief-comment/

Here is the text of the article:-

“The High Court’s judgment in Miller: A brief comment

The following short comment on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) was published on the Judicial Power Project’s website and is reproduced here with permission. The piece is part of a collection of short commentaries published by the Judicial Power Project; the full collection can be accessed here. I will be publishing a more detailed piece on Miller in due course.

Some of today’s press coverage of the judgment in Miller, accusing judges of acting undemocratically, is deplorable. It is entirely right and proper that the Court should determine the legal extent of executive authority. That is an axiomatic judicial function in a democracy founded on the rule of law. But what of the content of the decision?

The judgment is striking in its muscularity. The Court considered the Government case to be so weak that it judged it untenable before even considering the claimant’s arguments in detail. The Government’s case, said the Court, was ‘flawed’ at a ‘basic level’. Reading the judgment, one might be forgiven for thinking that the Government had advanced a heterodox argument of outlandish proportions. In fact, it was simply asserting that it could use a prerogative power to begin negotiations on the international plane. None of this is to deny the subtlety of the issues to which that contention gives rise concerning the relationship between EU and domestic law, and the role played by the European Communities Act 1972 in mediating that relationship. But as John Finnis has shown, the Government’s position is far from unarguable.

Once the Divisional Court had accepted — contrary to Finnis’s view — that EU law rights are to be considered domestic statutory rights enacted by Parliament, its focus inevitably shifted to the question whether the ECA was to be read as having displaced the Government’s ability to use the prerogative to begin the Article 50 process. In concluding that the ECA had indeed produced such an effect, the Court engaged in a highly creative process of statutory interpretation that involved relying upon the ECA’s status as a ‘constitutional statute’; treating the Act’s ‘constitutional status’ as evidence of Parliament’s intention — a view that is in tension with Laws LJ’s analysis in Thoburn; invoking certain ‘background constitutional principles’ that are relevant to statutory interpretation; and asserting that those principles are particularly relevant to the construction of constitutional statutes.

My point, in this short comment, is not to assess the correctness of the court’s conclusion on this matter. Rather, it is to observe that that conclusion — and the reasoning on which it is based — is highly contestable. Perhaps, therefore, the most surprising aspect of Miller is that the confident certainty of the terms in which the judgment is framed obscures almost entirely the complexity and contestability of the questions to which it gives rise, concerning the selection, content and interaction of the constitutional principles that form the prism through which the ECA falls to be examined.”

The core of the Judgment is that the central institution within the Constitution is the Crown in Parliament. Here is a section of the Judgment well worth quoting and bearing in mind.

“ The principles of constitutional law: the sovereignty of Parliament and the prerogative powers of the Crown

The United Kingdom constitution

18. The United Kingdom does not have a constitution to be found entirely in a written document. This does not mean there is an absence of a constitution or constitutional law. On the contrary, the United Kingdom has its own form of constitutional law, as recognised in each of the jurisdictions of the four constituent nations. Some of it is written, in the form of statutes which have particular constitutional importance (as we explain at paragraphs 43-44). Some of it is reflected in fundamental rules of law recognised by both Parliament and the courts. There are established and well-recognised legal rules which govern the exercise of public power and which distribute decision-making authority between different entities in the state and define the extent of their respective powers. The United Kingdom is a constitutional democracy framed by legal rules and subject to the rule of law. The courts have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws.

19. In these proceedings, this court is called upon to apply the constitutional law of the United Kingdom to determine whether the Crown has prerogative powers to give notice under Article 50 to trigger the process for withdrawal from the European Union. The law we were taken to was primarily the law of England and Wales, with some reference to the position in the other jurisdictions in the United Kingdom, Scotland and Northern Ireland. Although this court only has jurisdiction to apply the law of England and Wales, we note that no-one in these proceedings has suggested that such parts of constitutional law in Scotland and Northern Ireland in relation to the interaction between statute and the Crown’s prerogative powers as are relevant to determine the outcome in this case are any different from the law of England and Wales on that topic. Accordingly, for ease of reference and in view of the general constitutional importance of this case we will refer to UK constitutional law.

The sovereignty of the United Kingdom Parliament

20. It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme (we will use the familiar shorthand and refer simply to Parliament). Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this.

21. But even then Parliament remains sovereign and supreme, and has continuing power to remove the authority given to other law by earlier primary legislation. Put shortly, Parliament has power to repeal the ECA 1972 if it wishes.

22. In what is still the leading account, An Introduction to the Law of the Constitution by the constitutional jurist Professor A.V. Dicey, he explains that the principle of Parliamentary sovereignty means that Parliament has:

“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament.”

(p. 38 of the 8th edition, 1915, the last edition by Dicey himself; and see chapter 1 generally).

Amongst other things, this has the corollary that it cannot be said that a law is invalid as being opposed to the opinion of the electorate, since as a matter of law:

“The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors.” (ibid. pp. 57 and 72).

23. The principle of Parliamentary sovereignty has been recognised many times in leading cases of the highest authority. Since the principle is common ground in these proceedings it is only necessary to cite the speech of Lord Bingham of Cornhill in R (Jackson) v Attorney General[2005] UKHL 56; [2006] 1 AC 262 at para. [9]:

“The bedrock of the British constitution is … the supremacy of the Crown in Parliament …”.

The Crown’s prerogative powers

24. The extent of the powers of the Crown under its prerogative (often called the royal prerogative) are delineated by UK constitutional law. These prerogative powers constitute the residue of legal authority left in the hands of the Crown. As Lord Reid said in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, at 101:

“The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute.”

25. An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers. But the constitutional limits on the prerogative powers of the Crown are more extensive than this. The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised. Outside those boundaries the Crown has no power to alter the law of the land, whether it be common law or contained in legislation.

26. This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It has its roots well before the war between the Crown and Parliament in the seventeenth century but was decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognised ever since.

27. Sir Edward Coke reports the considered view of himself and the senior judges of the time in The Case of Proclamations (1610) 12 Co. Rep. 74, that:

“the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”

and that:

“the King hath no prerogative, but that which the law of the land allows him.”

28. The position was confirmed in the first two parts of section 1 of the Bill of Rights 1688:

“Suspending power – That the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall.

Late dispensing power – That the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath beene assumed and exercised of late is illegall.”

29. The legal position was summarised by the Privy Council in The Zamora [1916] 2 AC 77, at 90:

These principles are not only well settled but are also common ground. It is therefore not necessary to explain them further.”

This approach is, to be fair, consistent with the way our Constitution Law has developed. I have previously commented that democracy is very much a bolt-on to the oligarchic principles of the British Constitution. No clearer statement of that could really be sought from any legal Judgment.

In a genuine democracy it is the “People” and the “Nation” which is sovereign, not some constitutional construct like the “Crown in Parliament”. In a genuine democracy the “Crown in Parliament” would be seen to be the delegates of the People not their masters. The People within a democracy are “citizens” not “subjects”. The United States Constitution has a greater aspiration towards being democratic than our constitution which is why there is reference to “we the People…” and court cases are brought in the name of “the People” against the accused rather than as here “the Crown” against the accused.

So what we have in this case is a strongly worded logical Judgment based on the traditional unpinning of the Constitution arising out of the English Bill of Rights and 1689 Glorious Revolution, not on the theory of democracy or any ideas of nationhood.

It looks to me from the Judgment as if the Government may also have failed to argue a distinction between directly applicable EU rights that arise through the EU system and are directly applied as a result of the European Communities Act and have agreed that those rights are the same in essence as rights arising from either Common Law or Statute. Those are the rights which previous cases have upheld as being outside the power of the Royal prerogative to change.

That being the case it may well be that the Supreme Court next month will rule to uphold this Judgment. If that is the case then be in no doubt that the giving of notice under Article 50 will require primary legislation to go through Parliament. That is an Act to be passed by both the House of Commons and the House of Lords and to be given Royal Assent and to be implemented by an Order from the Privy Council.

Such legislation to become an Act of Parliament will be subject to all sorts of quibbles and delaying tactics by the Remainers who form a huge majority of Members of Parliament and Peers. It follows that we look like we are entering a major constitutional crisis at least equivalent to that of Lloyd George’s budget in 1911, which, combined with the Irish Question, got us perilously close to civil war with the then Leader of the Conservative Party involved in smuggling arms!

There is also the tempting question to Tories of whether the Conservatives can get electoral advantage by wrong-footing Labour into outright opposition to such a bill and then being able to get a two thirds majority in the House of Commons for a snap election under the Fixed Terms Parliament Act!

As a postscript would the Conservatives campaigning for a mandate to trigger the Article 50 notice be temptingly likely to achieve Theresa May’s aim of destroying UKIP?

It will also be interesting to see if Labour can actually survive as a Party outside of the metropolitan areas on a ticket of opposing Brexit when a vast majority of their voters in much of the rest of England voted to Leave in June’s EU Referendum!

JUDICIAL APPOINTMENTS IN ENGLAND – A POLITICALLY CORRECT STITCH UP?

You may think that you live in a country where the best of England’s lawyers are appointed to be our Judges. You would be wrong! Here is some detail on why!

Have a look at this:-

THE JUDICIAL APPOINTMENTS COMMITTEE (“JAC”) Equality Objectives 2012 – 2016

The document starts off all sounding fine:-

“The Judicial Appointments Commission seeks to deliver processes which are fair and ensure all applicants receive equal treatment.
Under the Constitutional Reform Act 2005 the JAC must select solely on merit. That combined with the requirement to encourage diversity in the range of persons available for selection will ensure that the most meritorious candidates will succeed and that the best judges will be appointed.”

BUT then it begins to show the real agenda:-

“The Equality Act 2010 applied a general equality duty to the JAC. The equality duty requires public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations. In addition the JAC is subject to specific duties as set out in the regulations that came into force on 10 September 2011. The duty requires the JAC to publish relevant, proportionate information demonstrating compliance with the equality duty and to set specific, measurable equality objectives.

The JAC objectives for 2012-2016 are split into four distinct areas; outreach, fair and open processes, monitoring, and promoting diversity within our staff. Each objective and the associated outcomes are detailed below. Reference to statistical data in Objective 4 refers to four specific areas, namely; gender, ethnicity, disability and professional background. This is in line with the Commission’s identified under represented groups. However, all protected characteristics, as defined in the Equality Act 2010, are considered when carrying out equality assessments.”

“Objective 1
To widen the pool of candidates applying for judicial positions through communication and outreach activities”

“The JAC will continue to encourage the widest range of good quality candidates to apply for judicial vacancies. In order to meet this objective we will:
” Continue to explain the selection process through a balanced outreach programme linked to the exercise programme.
” Increase our online presence to help raise awareness and understanding.
” Continue to circulate details of vacancies to a wide network of partner organisations to promote opportunities to their members.
” Analyse candidate feedback following seminars and exercises to ensure available materials continue to be appropriate and relevant and meets candidate expectations.
” Improve feedback provided to candidates throughout the selection process.”

Outcome measure…

” “Agreed outcomes of Barriers survey to be fed into the Diversity Forum Forward Look.”

“Objective 2
To ensure that all JAC selection exercise policies, procedures and practices are free of any unintended bias ensuring all candidates experience a fair and open process”

” “Complete an equality impact assessment against all nine protected characteristics for all selection exercise materials and all changes to the selection process used to identify any bias (unintended or otherwise) and make amendments where necessary.”
” “Continue to deliver equality and diversity training for all panel members as part of a tailored training package delivered before each exercise.”

” “Continue to work with the Judicial Diversity Taskforce and steering group to implement the Neuberger recommendations and other related activities.”

Outcome measure

” “Ensure progression rates for the reported groups are consistent throughout the selection exercise and where possible in line with or an improvement on the eligible pool”.

“Objective 3
To monitor the diversity of candidates selected for judicial appointment (against the eligible pool where available) and take remedial action where appropriate”

” “Consider diversity at the three key checkpoints of the exercise, namely, application, short listing and selection day stage and seek to remedy any disproportional ‘drop out’ of candidates by protected characteristics as outlined in the Equality Act 2010 on which we have data.”
” “Wherever possible we will use a previous comparator exercise to measure any increases/decreases in applications from women, disabled, black and minority ethnic candidates and solicitors in line with the Commission’s identified under represented groups.”
” “Continue to publish official statistics containing diversity breakdowns for public scrutiny twice yearly on the JAC website “
” “Invite equality representatives from the legal professions, i.e. Bar Council, Law Society and CILEx to equality assess qualifying tests and role plays making recommendations for change where appropriate.”

“Objective 4
Promoting diversity in the workplace and ensuring that the JAC meet the requirements of the Equality Act 2010 as an employer”

” “Ensure regular updates and monitoring of the diversity breakdown of permanent staff through the HR system.”

Outcome measure

” “Staff reflect the diversity of the general population at all levels.”

Click here for the full article >>>
http://jac.judiciary.gov.uk/static/documents/jac_equality_objectives_2013.doc

The Judicial Appointments Commission is of course applying a system set for it by the Commissars of Political Correctness. Here are some key extracts from :-

THE REPORT OF THE ADVISORY PANEL ON JUDICAL DIVERSITY 2010

“DEVELOPING A DIVERSE POOL

Recommendation 12

The Panel recommends that the Bar Council, the Law Society and ILEX set out a detailed and timetabled programme of change to improve the diversity profile of members of the professions who are suitable for appointment at all levels. They should bring this plan to the Judicial Diversity Taskforce within 12 months of the publication of this report. This plan should include information on how progress will be monitored.”

“STRUCTURED ENCOURAGEMENT

Recommendation 13

The legal profession and the judiciary should put in place systems for supporting suitable and talented candidates from under-represented groups to apply for judicial appointment.”

“THE JAC’S INTERVIEWING PANELS

Recommendation 31

The JAC must assemble diverse selection panels. There should always be a gender and, wherever possible, an ethnic mix.

Recommendation 32

Panel chairs and members must receive regular equality and diversity training that addresses how to identify and value properly transferable skills and also to ensure that they are aware of any potential issues regarding their unconscious bias.

Recommendation 33

All JAC selection panel chairs and members should be regularly appraised and membership periodically refreshed. Poorly performing panel members should be removed.”

“APPOINTMENT TO THE SUPREME COURT AND COURT OF APPEAL

Recommendation 41

The selection process for vacancies in the most senior courts should be open and transparent, with decisions made on an evidence base provided by the applicant and their referees in response to published criteria. No judge should be directly involved in the selection of his/her successor and there should always be a gender and, wherever possible, an ethnic mix on the selection panel.

Recommendation 43

The selection process to the Supreme Court for the United Kingdom should be reviewed to reduce the number of serving justices involved and to ensure there is always a gender and, wherever possible, an ethnic mix on the selection panel. This review should include consultation with the Lord Chief Justices of England and Wales and Northern Ireland and the Lord President of the Court of Session.”

Click here for the full article>>>
http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/advisory-panel-judicial-diversity-2010.pdf

This “Report” was chaired by, and mostly written by, Baroness Neuberger. Its recommendations are sometimes referred to in official documents as “Neuberger guidelines”.

Here is an extract from Baroness Neuberger’s biography that may help clarify what mind-set and ideological background she brought to her work. It also clarifies what personal interests she might have brought to bear in writing the report.

“Rabbi Julia Babette Sarah Neuberger, Baroness Neuberger, DBE (born 27 February 1950; née Julia Schwab) is a member of the British House of Lords. She formerly took the Liberal Democrat whip, but resigned from the party and joined the Crossbenches in September 2011 upon becoming the full-time Senior Rabbi to the West London Synagogue.

EARLY LIFE AND EDUCATION
Julia Schwab was born on 27 February 1950 to Walter and Liesel (“Alice”) Schwab. She attended South Hampstead High School and Newnham College, Cambridge, obtaining her Rabbinic Diploma at Leo Baeck College, London, where she taught from 1977-97. She was Chancellor of the University of Ulster from 1994-2000.

Her father was born in the UK to German Jewish immigrants who arrived before the First World War. Her mother was a refugee from Nazi Germany, arriving at age 22 in 1937. The Schwab Trust was set up in their name, to help support and educate young refugees and asylum seekers.

RELIGIOUS ROLES
Neuberger was Britain’s second female rabbi after Jackie Tabick, and the first to have her own synagogue. She was rabbi of the South London Liberal Synagogue from 1977 to 1989 and is President of West Central Liberal Synagogue. She has been president of theLiberal Judaism movement since January 2007. On 1 February 2011, the West London Synagogue (a Movement for Reform Judaism synagogue) announced that she had been appointed as Senior Rabbi of the synagogue.

PARLIAMENTARY ROLES
Neuberger was appointed a DBE in the New Year Honours of 2003. In June 2004 she was created a life peer as Baroness Neuberger, of Primrose Hill in the London Borough of Camden. She served as a Liberal Democrat Health spokesperson from 2004 to 2007. On 29 June 2007, Baroness Neuberger was appointed by the incoming Prime Minister Gordon Brown as the government’s champion of volunteering. She resigned from the Liberal Democrats upon becoming Senior Rabbi of the West London Synagogue.

PERSONAL LIFE AND FAMILY RELATIONSHIPS
Julia Schwab married Professor Anthony Neuberger.[8] They have two adult children, a son and a daughter. Anthony Neuberger is the son of Professor Albert Neuberger, and the brother of Professors Michael and James Neuberger, as well as Lord Neuberger of Abbotsbury, President of the Supreme Court of the United Kingdom.”

For further reference on Baroness Neuberger you might find this snippet interesting>>>

Rabbi Julia Neuberger (of West London Synagogue)’s daughter Harriet to be gay bride | Daily Mail Online

http://www.dailymail.co.uk/news/article-2560965/SEBASTIAN-SHAKESPEARE-Rabbi-Julia-Neubergers-daughter-Harriet-gay-bride.html

It is also “interesting” to say the least that this is what Baroness Neuberger’s brother-in-law said recently:-

“A career judiciary with fast-track promotion to higher courts may be required to overcome lack of diversity on the bench, the UK’s most senior judge has suggested. City law firms use “honeyed words” to obscure their efforts in preventing talented solicitors from becoming judges, Lord Neuberger, president of the supreme court, said. He said without further changes the shortage of women and those from minority ethnic backgrounds would take too long to rectify.

In an interview with the UK supreme court blog, Neuberger also says that the courts system remains “chronically underfunded” and that the increase in litigants in person – due to cuts in legal aid – is leading to delays and “less good justice”.

His comments, released in advance of the new legal term, will galvanise the debate over how to ensure that the judiciary better reflects the composition of society. Overall, 24.5% of court judges are women and about 5.8% are from ethnic backgrounds. Seven of the 38 judges in the court of appeal are women.
Of the 12 justices on the supreme court only one, Lady Hale, is a woman. Another of the justices, Lord Sumption, has said that under the current appointments system it will take 50 years to achieve a representative judiciary.

“A career judiciary where there is a potential fast track could be an option: such an individual could enter it at, say, the age of 35 as a junior tribunal member or possibly a district judge and work their way up,” Neuberger told the UKSC blog, which is independent of the supreme court…”

Neuberger said that it should not be assumed that the problem will rectify itself. “I am not one of those people who optimistically thinks that if we just sit back it will all sort itself out and the judiciary will eventually include many more women and ethnic minorities,” he said. Merit should still be an essential requirement “although to be fair, merit is a slightly flexible concept”.”

Here is the full article>>>
Judiciary needs fast-track scheme to boost diversity, says top judge | Law | theguardian.com

http://www.theguardian.com/law/2014/sep/17/judiciary-needs-fast-track-scheme-boost-diversity-neuberger

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Category Archives: judge

LADY HALE, PRESIDENT OF THE SUPREME COURT AND FEMINIST ACTIVIST

LADY HALE, PRESIDENT OF THE SUPREME COURT AND FEMINIST ACTIVIST

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

WRITTEN SUBMISSIONS OF THE CLAIMANT

TOMMY ROBINSON’S PROSECUTION TO CONTINUE!

TOMMY ROBINSON’S PROSECUTION TO CONTINUE!

Tommy Robinson’s ‘massive’ jail bonus: publicity

The far-right leader expects to be imprisoned this week for ‘telling the truth about Islam’. It should bring a big payday too

October 21 2018, 12:01am, The Sunday Times

UK’s Electoral Commission rules that “England worth fighting for!” is OFFENSIVE!

UK’s Electoral Commission rules that “England worth fighting for!” is OFFENSIVE!

2. Introduction

3. Background

4. Precis of Grounds of this Application

5. The Decision

6. The Challenge

8. Costs

a) The Costs of the Application for Permission

b) Judicial Review Costs

9. Discrimination

10.The European Convention

14.Vires

15.Rationality

16.Lack of Consultation

Complaint made about Judge who claimed ‘we are LUCKY to live in a multi-racial society’!

BREXIT – BEFUDDLED AND BE-JUDGED!

BREXIT – BEFUDDLED AND BE-JUDGED!

JUDICIAL APPOINTMENTS IN ENGLAND – A POLITICALLY CORRECT STITCH UP?

JUDICIAL APPOINTMENTS IN ENGLAND – A POLITICALLY CORRECT STITCH UP?

THE JUDICIAL APPOINTMENTS COMMITTEE (“JAC”) Equality Objectives 2012 – 2016

THE REPORT OF THE ADVISORY PANEL ON JUDICAL DIVERSITY 2010