Category Archives: EU

Escaping the  European Union (Withdrawal) (No. 2) Act 2019.

Robert  Henderson  

The EU may  have  overreached themselves.  On  9th October the president of  the European parliament David Sassoli  suggested  that a n extension  under Article 50 should only be granted if  either a General Election  or  a second referendum  is  held during the extension period, viz:

 Mr Sassoli told the European Parliament: “I had a fruitful discussion with Speaker Bercow in which I set out my view that any request for an extension should allow the British people to give its views in a referendum or an election.”

‘France’s Europe Minister Amélie de Montchalin backed the plan and said: “If there are new elections or a new referendum, if there is a political shift leading us to believe we could have a different dialogue from the one we have today, then an extension can be discussed.”  ‘

If the EU  stick by the conditions  Sassoli wants to  see attached to an extension it raises the question of  what  exactly the European Union (Withdrawal) (No. 2) Act 2019 can  force upon a Prime Minister .

The Act requires Mr Johnson to send  to the EU  this letter if there is no agreement between the UK and the EU:

“Dear Mr President,

The UK Parliament has passed the European Union (Withdrawal) (No. 2) Act 2019. Its provisions now require Her Majesty’s Government to seek an extension of the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020.

I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty. The United Kingdom proposes that this period should end at 11.00pm GMT on 31 January 2020. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early.

Yours sincerely,

Prime Minister of the United Kingdom of Great Britain and Northern Ireland”

Thus Mr  Johnson is certainly obligated to seek a simple  extension without conditions.  But there is nothing in the Act which obligates him to accept an offer of an extension with conditions for the question of conditions is not mentioned in the Act.

The   failure to mention conditions either generally or specifically  might well be sufficient to negate the need for Johnson to accept the offer of an extension which had conditions attached  such as those the EU had stipulated.    However, there  are  also the tests of irrationality and unreasonableness   in English law.

 Lord Greene MR said this in the Wednesbury case: “If a  decision on a competent matter  is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere, and this kind of case would require something overwhelming. “

Lord Diplock in a case involving GCHQ :  said  this: “By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. This applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question  to be decided could have arrived at”

The idea that Johnson (or any Prime Minister) have to accept whatever conditions the EU place on an extension is clearly unreasonable because the EU could ask for anything no matter how absurd,  for example, the EU  might  demand £100  billion as a condition for agreeing to  an extension or   stipulated that the extension period be for   years?   Both irrationality and unreasonableness would surely  apply in such  instances.

If the EU back  the   stipulation that an extension will  only be granted if there was a general election or a second  referendum  is objectively damaging to our democracy because it  is a gross interference with UK politics and is specifically designed to further the EU’s interests and not those of the UK .

 To obey the Act    Mr  Johnson is required to do no more than seek an extension.

Court of Appeal asked to set aside LJ Hickinbottom’s Order because of Bias

 

 

The English Democrats have applied to the Court of Appeal to set aside Lord Justice Hickinbottom’s Order – on the Grounds of ‘Apparent Bias’.

The English Democrats have now made an application to the Court of Appeal to set aside Lord Justice Hickinbottom’s Order.

Here is the text of the statement in support of our Application:-
1.         General Introduction
The Court is referred to the Claimant’s Judicial Review Grounds (‘the JR Grounds’) and the Claimant’s Written Submissions (‘C Submissions’) for the background facts and core submissions of law in this matter.  Terms defined in C Submissions are applied here.  The Court is also referred to the First Defendant’s Summary Grounds of Resistance (‘the SGR’) and the Claimant’s reply to the same (‘C Reply’).
The application for permission was considered by Spencer J. and, by order dated 18.6.2019 and sent to the Claimant’s solicitors on 19.6.2019 (‘the Order’), he refused permission to issue judicial review proceedings and, pursuant to CPR r. 52.12 (7), declared that the application for permission was “Totally Without Merit”.
Accordingly, the Claimant was denied the right it would otherwise have to an oral renewal hearing heard in open court.  Pursuant to r. 52.8 (4) any appeal against the Order must be made ‘within 7 days of service of the order of the High Court refusing permission to apply for JR’.  Pursuant to r. 2.8 (3) (b) (iii) the date of deemed service (21.6.2019) was excluded and this application had to be filed by 4 pm on 28.6.2019.
It is notable that, notwithstanding 35 pages of detailed submissions in support of the application for permission in the JR Grounds, C Submissions and C Reply (that the learned judge below declared he had read ‘very carefully’) the judge’s decision on the merits of the claim is set out in three short paragraphs amounting to 13 lines and around 150 words, three lines of which merely rely upon five paragraphs in the SGR.  The learned judge, with respect, scarcely engaged with the Applicant’s constitutional arguments on the by-passing of Parliament through use of the Royal Prerogative. The published opinion of the Rt Hon. Sir Richard Aitkens was not addressed at all.  Put shortly, Hickinbottom LJ treated an argument supported by a distinguished former member of his own court as “Totally Without Merit”.
It is notable and a matter about which the Claimant is legitimately aggrieved that, although the Claim was issued on 1.4.2019 and the SGR filed and served on 17.4.2019, the claim was not considered by a single High Court judge for over two and a half months after issue, in spite of an application for expedition and notwithstanding the obvious constitutional importance of the claim.  Moreover, this was in spite of an order by Supperstone J. that, although refusing an application for expedition, did so taking into account that the Defendants had (at that time) undertaken to file and serve the SGR by 14.6.2019; and thereby suggesting that the application for permission would be determined shortly thereafter.  In that time, much debate about whether and how the UK should leave the EU had continued and the then Prime Minister has resigned as a result of her policy on Brexit. It is apparent that Supperstone J. did not envisage the degree of delay which eventuated. 
2.          The learned Lord Justice was either actually biased against the Claimant as a litigant and/or against the outcome sought by the Claimant; alternatively, the published positions of the learned Lord Justice were such as to give the appearance of apparent bias; and in either case his Order should thereby be set aside
Legal framework
The relevant principles are set out in a series of recent cases of high authority:-
R v Bow Street Magistrate ex p Pinochet [2000] 1AC119 (House of Lords)
Locabail (UK) Ltd v Bayfield Properties [2000] QB 451 (Court of Appeal)
Millar v Dickinson  [2002] 1 WLR 1615 (Privy Council)
Porter v Magill [2002] 2 AC 357 (House of Lords)
Taylor v Lawrence  [2003] QB 528  (5-member Court of Appeal)
Lawal v Northern Spirit  [2004] 1 All ER 187  (House of Lords)
Pinochet, Re [1999] UKHL 52 (15 January 1999) 
URL: http://www.bailii.org/uk/cases/UKHL/1999/52.html
Cite as: [1999] UKHL 52
The authorities give rise to three categories of case in which decisions may be set aside on the grounds of partiality:-
First, in cases in which a judge has been influenced by partiality or prejudice (Locabail para 3) (actual bias).  Bias may be described as a predisposition or prejudice against one party’s case or evidence on an issue for reasons unconnected with the merits of the issue (Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 at [28],  per Scott Baker L.J.  Bias also includes ‘an inclination or a pre-disposition to decide the issue only one way, whatever the strength of the contrary argument’ (Davidson v Scottish Ministers [2004] UKHL 34; R (on the application of DM Digital Television Ltd) v OFCOM [2014] EWHC 961 (Admin)).
Pre-determination and apparent bias are distinct concepts: R (on the application of Persimmon Homes Ltd) v Vale of Glamorgan Council [2010] EWHC 535.  In British Academy of Songwriters, Composers and Authors [2015] EWHC 1723 (Admin) at [168], [277], a case concerning a complaint about predetermination and a duty to consult, Green J. found that ‘The law focuses upon actual predetermination but also the appearance of predetermination’. 
Moreover, as Lord Goff of Chieveley held in R v Gough ([1993] AC 646 at p.659):
“Bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias“
A judge’s comments may also demonstrate actual bias (O’Neill v HM Advocate (No 2) [2013] UKSC 36 at [53], per Lord Hope of Craighead DPSC).  A precautionary approach to recusal is a sensible one (Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515 at [39]) and (at [41]) the decision made by a judge whether or not to accede to an objection based on apparent bias is a ‘multi-factorial decision’.
Secondly, in accordance with the principle that no man may be judge in his own cause.  This covers situations where the judge has a pecuniary interest, or, occasionally, some other form of interest.    Such an interest will automatically disqualify a judge (Locabail para 4). 
Thirdly, in circumstances in which “a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (apparent bias):  per Lord Hope of Craighead in Porter at para 103.     In this regard,
(1)            “Public perception of the possibility of subconscious bias is the key”:  per Lord Steyn in Lawal at para 14; and
(2)            The “indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago”:  per Lord Steyn in Lawal at para 22.
In Porter v Magill (at p.494 E-H paras 102-103) Lord Hope suggested that the traditional test formulated in R v Gough ([1993] AC 646) should be modified, so as to bring the English test fully into line both with other common law jurisdictions and with the manner in which the ECtHR has interpreted article 6.  In so doing, Lord Hope largely adopted, with one modification, a suggestion from Lord Phillips of Worth Matravers MR in In re Medicaments (no 2) [2001] 1 WLR 700.  The test thus reformulated is that:
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge is biased.  It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.”
As Lord Hope of Craighead emphasised (at para 88), a tribunal must not only be independent, but also it must not appear to lack independence.
If there is any doubt it should be resolved in favour of recusal:  per Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd  [2000] QB 451 at para 25.
The Strasbourg jurisprudence is to very similar effect.  In Findlay v UK (1997) 24 EHRR 221 at p.224 the European Court of Human Rights (‘the Strasbourg Court’) held that:
As to the question of ‘impartiality’, there are two aspects to this requirement.  First, the tribunal must be subjectively free from personal prejudice or bias.  Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.”
(Para 74, emphasis added)
The concepts of independence and impartiality are closely linked: see, for example, Lord Bingham at para. 8 of R. v. Spear [2003] 1 AC 734:
‘The European Court has defined with great clarity and consistency the meaning of the article 6(1) requirement that a tribunal be independent and impartial. It is enough to quote paragraph 73 of the court’s judgment in Findlay v United Kingdom 24 EHRR 221, 244-245:
“The court recalls that in order to establish whether a tribunal can be considered as ‘independent’, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and objective impartiality are closely linked and the court will consider them together as they relate to the present case.” 
It should also be remembered, as the court pointed out at p 245, para 76, that in order to maintain confidence in the independence and impartiality of the tribunal appearances may be of importance.”
(Emphasis added)
The Strasbourg Court has also found that actual or apparent bias can affect the independence of a tribunal and thereby impact upon a litigant’s right, in the determination of his civil rights, to a fair and public hearing.  (Of course, in this case the right to a public hearing has itself been precluded by the learned judge’s decision.) 
In Findlay v UK (1997) 24 EHRR 221 at p.224 the European Court of Human Rights held that:
‘…in order to establish whether a tribunal can be considered as ‘independent’, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.
‘As to the question of ‘impartiality’, there are two aspects to this requirement.  First, the tribunal must be subjectively free from personal prejudice or bias.  Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.’
(Para 73, emphasis added)
Possible actual bias against the Claimant as a litigant
The Claimant is a political party whose public policies are (inter alia):
(1)                That England should be independent from the United Kingdom; and
(2)                That the United Kingdom (or an independent England) should leave the European Union.
That the Claimant is a political party is of particular importance: the said positions are not merely the political views of an individual (which might be distinguished from his or her merits as an individual by a fair minded judge with different opinions) but are the policy positions by which the party is legitimately identified and judged.
Comments may indicate bias (O’Neill v HM Advocate (No 2)) and, ‘even though [the learned judge] may in good faith [have] believed that he was acting impartially, his mind may unconsciously [have been] affected by bias (R v Gough).
In support of this and the following allegation of actual bias, the Claimant relies upon what it respectfully submits is the paucity of the reasoning of both the learned Judge below and of the learned Lord Justice herein and the steps they took (by wholly unjustified TWM declarations) to remove the possibility of any oral hearing  and shut down the challenge. 
Possible actual bias against the outcome sought by the Claimant
This claim is distinguishable from claims (for example) involving alleged electoral offences committed by adherents of a Leave vote or (in other circumstances) a candidate or political party.[1]  In those cases, while campaigners are identified by their political positions (distinguishing such cases from any case in which a litigant may have a political opinion but which is entirely incidental to the matters at issue), the allegations fall to be determined on their merits and are not linked directly to the prospect of the UK leaving the EU.[2]
Here, as has been alleged at the outset, the decision of the Lord Justice of Appeal directly affects the possibility of – and materially contributes to – the United Kingdom leaving or remaining in the EU: an outcome that the learned Lord Justice has demonstrated he is opposed to. 
Apparent bias
Alternatively, even if the Court is not satisfied that the learned Lord Justice was actually biased against either the Claimant or the outcome sought by the Claimant, ‘a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’.  Moreover, there is at least a possibility of such apparent bias and so the Court should allow the Application.
Outcome if either of these grounds are successful
The Order of the 19th August be set aside and reconsidered.  In the reconsideration, pursuant to CPR r. 52.15 (3), the Court of Appeal has the power (on paper or at a hearing) simply to give permission for judicial proceedings to be brought, thus avoiding the need for a further hearing in the Court of Appeal to determine whether to grant permission.  The editors of the White Book (at Vol 1, 52.15.2/3) discuss the solution to the ‘Gordian knot’ of the costs escalation that would be caused by a hearing of an appeal in the Court of Appeal and suggests that, in the event a single judge considers an application for permission to appeal (to the CA) arguable, he or she should grant permission to bring JR proceedings.
It is submitted that such an outcome would have been particularly appropriate in this case.  The decision of Spencer J. was not only made without a hearing but precluded the right to a hearing in the High Court, notwithstanding substantial evidenceand detailed legal argument.  This puts into sharp relief the need for open justice where there can be no suggestion that individual judges are shutting out important litigation.  It might be argued that the very existence of the right to preclude an oral hearing is invidious, non-compliant with ECHR Article 6(1) and should be removed.  Regardless, it is particularly important to ensure a public hearing of the Claimant’s case – one of overwhelming public importance whatever the merits either of the legal case or of the consequences of the declaration sought – in circumstances where the learned Lord Justice has (it is regrettably necessary to say) improperly failed to recuse himself notwithstanding his (at least) apparent bias.
Further Points
Lord Justice Hickinbottom’s political activism is directly opposed to the English Democrats who are a patriotic and nationalist party.  Multi-culturalism with its emphasis on trying to break society up into diverse “communities” is directly contrary and inimical to any true nationalism including English nationalism, with its emphasis on integration and assimilation into the (English) nation.  Essentially the Applicant political party’s policies favour national unity, defining the nation as England, whereas multi-culturalism is divisive.  This is nothing to do with race.  Many fine members of the ethnic minorities love England and share her values.     
It is also assumed that Mr Justice Hickinbottom is also, in National Identity terms very opposed to the English Democrats as it seems that he is proudly Welsh, despite having lived and worked most of his life in England.
In his biography of Master Arbitrator 2018/2019 of the Worshipful Company of Arbitrators it says that he is a member of the London Welsh Male Voice Choir for over 20 years and he and his wife have a house in Cardiff where they spend most weekends.  Companies House also records that he was formerly a Director of the London Welsh Centre Ltd and the London Welsh Centre Trust.  No judge strongly associated with one of the other nations which make up the United Kingdom should have had anything to do with a case brought by the English Democrats, not least on a subject as contentious as the legality of the UK’s ongoing membership of the EU.      
Mr Justice Hickinbottom is also on publically available record as being intensely Europhile and it is on their public website that he is a Fellow of the European Law Institute whose published first objective is:-  “To evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the Member States.”    
This is a political stance which is clearly in direct opposition to, not only the policies of the English Democrats, but also specifically in direct opposition to what this case was about, which was to try to achieve a “No Deal” Brexit.  The Appellant wrote to the European Law Institute on 5th September 2019 asking if the information on their website regarding Lord Justice Gary Hickinbottom is up to date and accurate.  No such confirmation has yet been received but this application is made now to avoid any delay.  If confirmation, as expected, is received then it will be forwarded to the court.
This case is therefore a much more direct example of apparent bias than there was in the Pinochet case
(Pinochet, Re [1999] UKHL 52 (15 January 1999) 
URL: http://www.bailii.org/uk/cases/UKHL/1999/52.html
Cite as: [1999] UKHL 52)
where Lord Hoffman was simply a prominent supporter of an organisation which had expressed its opposition to General Pinochet.  Lord Hoffman had not made any statements, that anybody was aware of, that opposed General Pinochet himself or specifically called for his prosecution.
The European Law Institute’s 2018 activity report proudly boasts of the activities of “ELI members who silently work behind the scenes each day to inch the ELI’s unique organisation towards achieving its causes” says that the 1372 Fellows (i.e. including Lord Justice Hickinbottom):- “must be natural persons and must actively engage, by their professional, vocational or scholarly activities in European legal development.  They … participate in the Institute’s activities based on their personal and professional convictions and without regard to the interests of any clients or stakeholders.”  There is no known instance of anyone opposed to their state’s membership of the EU being admitted to Fellowship of the ELI.  The ELI is also an avowed supporter of the Facrtortame doctrine, which treats “Community Law” as federal and holds that even laws of constitutional importance in Member States must give way to Community Law. 
The ELI’s report also shows that the ELI receives a substantial proportion of its funding from the European Union. 
Furthermore it says that in order to join this “pan-European…membership based organisation” not only do you need to fill out an application and pay the fee but you also have to submit two references from amongst the current members and your application is “subject to Council’s approval”.  It is assumed this is on the basis that if you are not Europhile enough then your application will not be accepted to join the European Law Institute and that therefore the Learned Lord Justices’ pro EU and anti-Brexit political views are manifest.
The requirement for judges who have an apparent bias on issues raised in a court case to recuse themselves from dealing with it is of longstanding in English Law.  In addition in Article 6 of the European Convention of Human Rights there is the provision:-
“In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time by an … impartial tribunal.”
The tribunal cannot be “impartial” if the judge determining the matter is openly partial about key elements of the case before him as here.
Furthermore it is also submitted that it is wrong in principle for the court to make a finding without properly hearing the case that an Application is “Totally without Merit” where the Application is supported, not only by a professional solicitor, but also by professional Counsel and, in this case, also by very senior professional Senior Counsel.  It is an abuse of the questionable “Totally without Merit” bureaucratic device of blocking further consideration of a Judicial Review.  This may also be a breach of Article 6 of the European Convention of Human Rights of a right to a “fair and public hearing”.
In the premises both Mr Justice Spencer and Lord Justice Hickinbottom were wrong to make findings of “Totally without Merit”.
3.         Controversy with Claimant/Applicant/Appellant
Multi-culturalism is of course a Left-wing political ideology whose key objective is to undermine traditional society.  It and its proponents like Lord Justice Hickinbottom are at direct loggerheads with the English Democrats stance on multi-culturalism which is set out in their manifesto as follows:-
“3.16 England and Multi-Culturalism
3.16.1 It is a fact that during the past forty years people of many different cultures have come to live in England. Our country is in that sense a multi-cultural society. However, multi-Culturalism is an ideology which suggests that a mix of many cultures in one society is desirable and that it is the duty of government to actively encourage cultural diversity within the state. Further, it suggests that all cultures should be treated as equal. A logical extension of this is that all languages, histories and law codes should be treated equally. This is clearly impossible in a unified country. All ethnic groups should be free to promote their own culture and identity, but the public culture of England should be that of the indigenous English. The wearing in public of clothing designed to conceal one’s face is at variance with English culture and current security considerations. The European Court of Human Rights supports this view with its ruling ECHR 191 (2014).
This position is consistent with the rights of indigenous nations everywhere.”
Mr Justice Hickinbottom suggested his disapproval of the Claimant in his Order when he highlighted that the Claimant is a “political party”.
This is a case in which the Claimant sought judicial review of the decision by the Prime Minister, purportedly exercising the Prerogative powers of Her Majesty, to agree to an extension of the period before which the United Kingdom would withdraw from the European Union pursuant to Article 50 of the Treaty of European Union (‘A50’, ‘A50.1’, etc; ‘the TEU’).  The remedy sought was a declaration that no such Prerogative power existed and that the UK had, in consequence, withdrawn from the EU, in domestic, EU and international law, on 29.03.2019.
Consequently, any judge making any judicial decision that affects the outcome of this case would be responsible either: (a) by allowing the case to proceed, for an ultimate judicial determination that leads the United Kingdom to leave the European Union; or (b) by ending the claim (including by refusing permission to appeal to the Court of Appeal),  for allowing the UK to remain within the EU unless and until further steps are taken (or the effluxion of time without legislation, or a further extension of A50, on 31.10.2019). 
Moreover the purpose of a judge’s declaration that an application for permission to appeal is “Totally Without Merit” is to deny a claimant/applicant the right to an oral renewal of its permission application; as does a single judge of the Court of Appeal making the same declaration (which in this case would be final and un-appealable).
The Claimant is a political party in respect of which donors of more than £500 must be individuals on the electoral roll in the UK or bodies based in the UK (Political Parties, Elections and Referendums Act 2000, s 54) and the majority of whose members are resident in England and (it is reasonable to suppose) were electors eligible to vote in the referendum on membership of the European Union held on 23.6.2016 (‘the Referendum’).  The Claimant was publicly committed to the Leave campaign during the Referendum and has since continued to publicly campaign for the UK to leave the EU.  It also has a publicly expressed policy of support for the independence of England from the remainder of the United Kingdom, a policy advertised by its name.  Essentially the Appelant’s/Applicant’s political position is a logical extension of the process of balkanisation of the UK started by the then Labour Government’s devolution legislation in the late 1990s.   It also reflects the deep animosities created in England through the use of Welsh and Scottish votes to force membership of the EU onto England, which in turn suffered disproportionately from membership. 
4.         Public Controversy with Solicitor
Lord Justice Hickinbottom was formerly the Senior Liaison Judge for Diversity. His proposal to fast track representatives of multi-culturalist diversity client groups featured in the Law Society Gazette.  Here is the text of the article:-
“Judicial fast-track would boost diversity
Creating a judicial career fast-track for young lawyers could help improve diversity on the bench as they work their way up the judicial ladder, the most senior solicitor judge has told the Gazette.
But such a scheme would be just one of many entry points rather than an exclusive European-style career judiciary, Mr Justice Hickinbottom (pictured), recently appointed to the Court of Appeal, said.
This is one of a range of ideas being considered by senior judges, including developing a generic judicial skillset so applicants would be recruited for their judging abilities and then trained for specific roles.
Sir Ernest Ryder, senior president of tribunals, believes that would create a more objective selection system because ‘you aren’t just looking for someone who looks like you and looks like a good family judge. You are looking for a group of lawyers who satisfy the competencies we want from a judge – now how are we going to train them and where are we going to deploy them?’
Another driver for change is that fewer solicitors are applying successfully for court roles.
Ryder stressed: ‘One thing I am absolutely sure about is I want solicitors’ skills.’ And that means looking at ways of fast-tracking solicitors from part-time roles because ‘we know we can train someone to the appropriate level in a shorter time than it takes now’, he said.
Hickinbottom said that multiple entry points could speed up improvements in diversity. ‘We take judges from the top of the profession,’ he said. ‘But we could also take lawyers in as district or circuit judges in their twenties and support them up through the system. It happens in other jurisdictions and attracts a lot of women.’
However he recognised that those coming up through the ranks could be viewed differently and acknowledged it would require a residential judicial college.
He is not in favour of people becoming a full-time judge without doing a part-time role first. ‘That is dangerous. You can’t go back so you have to enjoy it,’ he said. ‘Most do, but, for those that don’t, it is hell.”
In response Robin Tilbrook, the solicitor who has conduct of this matter, and who is also the Chairman of the English Democrats, had the following letter published in the Law Society Gazette in which the then Mr Justice Hickinbottom’s comments were directly challenged.  Here is the text of the letter:-
“Dear Sir
Re: Judicial fast-track would boost diversity – 31st October 2016


I viewed your above story with great disquiet as it seems that this proposal from Mr Justice Hickinbottom seems somewhat symptomatic of the various questionable, not to say flaky “Reform” initiatives launched by various members of the Judiciary of the England and Wales jurisdiction.

I suspect that most other practitioners, who have a court based practice, will have noticed that, whilst many of the Judges that we experience are still of excellent quality that there is nevertheless an increasing proportion who are not of that quality. They are being appointed by the Judicial appointments system, which was politicised by Lord Irvine when he was Tony Blair’s Lord Chancellor to ensure that “no-one with reactionary views” could be appointed or promoted. 


With the utmost respect to the learned Mr Justice Hickinbottom, the focus of any public service ought to be on actually delivering a service to the public rather than tick-boxing “Diversity” quotas in a fashion reminiscent of the appointment system in the Soviet Union.”
As Lord Justice Hickinbottom, is a former solicitor, it is not unreasonable to suppose that the Judge may have read this criticism of his multi-culturalist agenda and have noted that Robin Tilbrook is an opponent.  In any event it was unwise with respect and inappropriate for a judge who had been in open conflict with the Applicant’s solicitor to be assigned to the case.  Judges should take care not to preside over the cases of those whom they have been in dispute, whether contractual, political or otherwise.  
5.         In the Premises
Lord Justice Hickinbottom’s decision should be set aside and the Application for Permission to Appeal reinstated for reconsideration to another Lord Justice of Appeal.

[1] For example, the recently concluded appeal of Leave.EU v the Electoral Commission (2019), Central London County Court (unreported) and the ongoing appeal of Vote Leave v the Electoral Commission.
[2] Although it should be noted that the findings of the Electoral Commission in the above cases were relied upon by the Claimant in Wilson v the Prime Minister R (Wilson) v [2019] EWCA Civ 304 in support of a judicial claim that sought to require HM Government to take particular steps because of illegalities found by the EC (and since under appeal).

Our “Defend Brexit” case is mentioned in key Commons Debate

Our “Defend Brexit” case is mentioned in key Commons Debate
On Wednesday the former Conservative Leader, Iain Duncan Smith, mentioned our case during the key debate on whether the Commons was going to be able to vote to deny a ‘No Deal’ Brexit.
You can see the context of the debate and his mention of the case on this link>>> https://youtu.be/DMZaDK2d4xk(10 min either side is left in for context
The point at which he references us is at 11:47 in this video and at 15:06:12 in the original https://parliamentlive.tv/Event/Index/a91e27e8-e525-4703-aaeb-036189f4caed )
If you watch Speaker Bercow’s reactions and expressions and listen carefully to his reply you may feel, as I do, that he is trying to be evasive and deceptive.  My guess is that while he had been advised that the Bill required “Queen’s Consent” he had then decided to ignore that advice because it would mean that the Government could refuse to give that “Consent” and the Bill which he supported would then fail. 
As Bercow is a prime example, of a MP who is trying to use every trick in the book to pervent Brexit, that would come as no surprise!
The question for Speaker Bercow was quite simple and ‘binary’.  Either the Royal Prerogative was affected by the Bill (in which case “Queen’s Consent” was required) or Royal Prerogative wasn’t affected (in which case no “Queen’s Consent” was required)!
Speaker Bercow ruled that there was no effect on the Royal Prerogative which means that he ruled that no extensions to the Article 50 Notice have not been agreed under the Royal Prerogative.  We of course argued this point in our “Defend Brexit” case but Lord Justice Hickinbottom ruled both that the Royal Prerogative did apply and also was used and so he claimed that our case (and the ruling of Speaker Bercow!) was “Totally Without Merit”!
Mr Justice Spencer on the other hand claimed that our case was “Totally Without Merit” because the extension was not under the Royal Prerogative but instead was under the Statutory Instrument (passed under the EU Withdrawal Act 2018) which changed the “Exit Day” from 29thMarch! 
So here we have it! EITHER Lord Justice Hickinbottom is right and the extensions were made under Royal Prerogative and so Speaker Bercow’s ruling is “Totally Without Merit”; OR Mr Justice Spencer is right and the Brexit date was changed by statutory instrument and the Royal Prerogative has been excluded; OR we are right and the Royal Prerogative has been excluded and there was no Act of Parliament empowering an extension and so we automatically left on the 29th March!
In a Learned Article on the LSE website Robert Craig (who is a part-time lecturer in Public Law at LSE and is currently pursuing a PhD at Bristol University considering the role of the Royal Prerogative in the modern UK constitution) argues as follows:-
“… the reason why Queen’s Consent was not needed for EUNoWA (EU Notification of Withdrawal Act 2017) was arguably because the Supreme Court ruling meant that prerogative could not logically be affected by conferring a power to notify under Article 50. It is by no means clear that triggering the process and extending the process are legally equivalent just because they are encompassed in the same Treaty Article. They are not even in the same subsection. Notification was done under Article 50(2). Extensions are done under Article 50(3).

Indeed this exact, and crucial, distinction has very recently been explicitly confirmed by Lord Justice Hickinbottom in rejecting the English Democrats’ judicial review application on 19 August 2019. It must be noted that permission appeal decisions do not have the same status as formal Court of Appeal judgments, but it is the most recent and best evidence we have of the what the law is. Hickinbottom LJ drew a sharp legal distinction between the Miller case situation of triggering the Article 50 process and the quite different legal scenario of extending the Article 50 process.

In short, international agreements (including agreements as to extensions of time under article 50(3) are matters for the Government in the exercise of prerogative powers and although such powers can be displaced by Parliament this case is distinguishable from [Miller] because Parliament, in its various interventions into the withdrawal process or otherwise, has not arguably displaced those prerogative powers in respect of an extension of time under article 50(3). Indeed, Parliament has consistently made clear in the 2017 [EUNoWA] and 2018 Acts [European Union Withdrawal Act 2018], and especially clearly in the European Union (Withdrawal) Act 2019, that timing of withdrawal (including agreeing extensions to the withdrawal date under article 50) was and is a matter for the Government.

Hickinbottom LJ must be right. This decision can only be seen as highly persuasive that the legal basis for the power to extend the Article 50 process is a matter of prerogative power.

Incidentally, this judgment is also relevant to one possible reading of the Speaker’s ruling. EUNoWA conferred the power on the Government to notify the EU of the intention of the UK to leave the EU. It said nothing about extensions.

1. Power to notify withdrawal from the EU

The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU. 2.

On one reading of the Speaker’s ruling, it might be thought that EUNoWA was being interpreted as conferring a general statutory power on the government to notify and the power to extend. Even taken in isolation, this would be a startling reading of EUNoWA because the wording of EUNoWA says nothing about extensions – it only mentions notification. However startling that may be as one possible reading, as a matter of law the proposition that EUNoWA confers the power to extend is now untenable after the decision of Hickinbottom LJ.”
(The original and full article can be found here>>>

Proponents of the new Bill to stop No Deal face a significant dilemma over Queen’s Consent

blogs.lse.ac.uk/Brexit/2019/09/02/proponents-of-the-new-bill-to-stop-no-deal-face-a-significant-dilemma-over-queens-consent/)
In any case I respectfully suggest to both Judges that Speaker Bercow’s ruling is either “Totally Without Merit” or that they were both totally wrong to make such a ruling in our case as it clearly had considerable merit!

Our Application to Appeal to the Court of Appeal has been dismissed


The Right Honourable Lord Justice Hickinbottom has dismissed our Application to Appeal to the Court of Appeal and has used the device of “Totally without Merit” to prevent us from demanding a hearing of our Application. 

 

Given that this is a case that very many lawyers, both distinguished and retired members of the judiciary, QCs, barristers and solicitors think has strong legal credibility, this decision can only be based upon the Judge’s politics. 

 

In the English and Welsh Jurisdiction these days a Judge’s politics perhaps should not be a surprise, given the blatant bias in the appointments system introduced under Blair by his last proper Lord Chancellor, Lord Derry Irvine, who created the Judicial Appointments Commission publicly boasting that he had created a system which would not allow the appointment of any Judges who had “Reactionary Views”. 

 

The Judicial Appointments Commission requires all Judges to prove that they have “a life-time’s commitment to Equality and Diversity”.  Lord Justice Hickinbottom has this in spades, as it says on his biography published on the Judicial website which says he is:- “the former Senior Liaison Judge for Diversity”.

 

Also Lord Justice Hickinbottom is a Fellow of the European Law Institute.  The first among ELI’s core objections is:- “To evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the Member States.”

 

So it is perhaps not a surprise that a Judge with such views would be more a Europhile Left-wing political activist than someone who would judge simply according to law. 

 

Such is my explanation of why we have had this decision go against us. 

 

The reasoning behind a claim that the case was ‘Totally without Merit’ is not about an actual finding of fact, since as our QC made clear, it was blatantly obviously that the first Judge had actually got his decision wrong and therefore our Application to Appeal clearly had substantial merit. 

 

No, this decision is not about the genuine merits of the case, it is about preventing this case from being heard, which the device of ‘Totally without Merit’ achieves, as I explained in a previous blog. 

 

I think the only sensible reaction to this is to make an Application to the European Convention of Human Rights Court, based in Strasbourg.  This is of course not the EU Court, but a court that will look at whether or not these decisions to exclude our case from even getting a hearing is simply on the political orientation of the Judiciary and is a breach of Article 6 of the European Convention of Human Rights which states:-

 

“In the determination of his civil rights….everyone is entitled to a fair and public hearingwithin a reasonable time by an…impartial tribunal”

 

Another interesting questions is why Lord Justice Hickinbottom was chosen by the Civil Service to hear the case? 

 

I think Jacob Rees-Mogg rather gave the game away when he was asked about the case.  He made clear that he did not want it to succeed.  Maybe that is also true of the Prime Minister, Boris Johnson.  If so that would simply be a demonstration that both of them are much more concerned about the Conservative Party in “getting Brexit done” than about the interests of our country in how it is done.

 

The worrying element of that thought is that it means that they will be quite open to agreeing completely unacceptable surrender terms to the EU in some sort of Withdrawal Agreement. 

 

Boris’ Ministry of Justice did of course have the opportunity to influence which Judge got to look at these papers and what steer that that Judge was probably given as to the outcome that was desired. 

 

Let’s see now if the European Court of Human Rights considers that the politicised way that the High Court and the Court of Appeal operate is in breach of the European Convention of Human Rights!

 

I think it is a sad reflection on the state of our country in which we have allowed Leftist social justice warriors to dictate the agenda, not only in politics and in the media, but also in the court system.  A court system which used to be renowned for its impartial and incorruptible justice!

 

What do you think?

Our 2nd Article 50 case


2ndArticle 50 case

I set out below the letter which I have sent starting the legal process to bring our second Article 50 case.   
The aim of this case is to box in the UK Government into a No Deal Brexit.  
If the required undertakings are given then they will have legal force! 
If they are not given then we will know that Boris intends to stitch us all up in a version of Theresa May’s terrible “Deal”.

Mr Jonathan Stowell                                     

c/o Government Legal Department

Team B6

One Kemble Street

London WC2B 4TS

Dear Sirs


Matter: In the matter of a further Judicial Review on the legal basis of Brexit

Letter Before Claim

This letter is drafted under the judicial review protocol in section C of the White Book, which provides for a response within 14 days.

1.    Respondent: Our clients identify two defendants: the Prime Minister (or, if necessary, the First Lord of the Treasury), as the person with overall responsibility for Brexit policy and the Secretary of State for Exiting the European Union.

2.    Applicant: The English Democrats (Reg. No. 6132268) of Quires Green, Willingale, Ongar, Essex, CM5 0QP, for and on behalf of the 15,188,406 voters in England who voted to Leave the European Union in the June 23rd2016 referendum.

3.    The details of the Applicant’s legal advisers, if any, dealing with this claim:-

Tilbrook’s Solicitors, of Quires Green, Willingale, Ongar, Essex, CM5 0QP

4.    The details of the matters being challenged:-

Any further purported non-statutory Extensions or Revocation of the United Kingdom’s notification to Leave the European Union given under Article 50 of the Lisbon Treaty.

5.    The details of any Interested Parties:-

Every person in England and in particular the 15,188,406 voters in England who voted to Leave the European Union in the 2016 referendum.

6.    The Issues:-

Following the Judgments of the High Court, of the Court of Appeal and of the Supreme Court in R (on the application of Miller and another) – v – Secretary of State for Exiting the European Union [2017] UKSC5 and the consequent enactment of the European Union (Notification of Withdrawal) Act 2017, there is no discretionary prerogative power vested in Her Majesty’s Government to agree any extension to the Article 50 Notice, or to Revoke the said Notice without a further express Act of Parliament to authorise such Extension or Revocation. 

Accordingly any further purported Extensions or Revocation are also void and of no effect. 

7.    The details of the action that the Defendant is required to take:-

What is sought from the Respondents is:

(i)             An undertaking that there will be no further attempts to purport to vary the Notice given under the said EU Notification of Withdrawal Act 2017 except pursuant to an express Act of Parliament; and

(ii)           The formal admission that the Government admits that any such purported extension of the notice period or revocation would be legally invalid; and

(iii)         A formal admission that, in the absence of any further statute, that the UK’s departure from the European Union shall go ahead as currently notified on the 31stOctober 2019. 

8.    ADR proposals:-

N/A

9.    The details of any information sought:-

Not applicable.

10.The details of any documents that are considered relevant and necessary:-

          Not applicable.

11. The address for reply and service of all documents:-

Tilbrook’s Solicitors of Quires Green, Willingale, Ongar, Essex, CM5 

 0QP

12.  Proposed reply date:-

14 days from the date hereof.

Yours faithfully

Tilbrook’s

Is Boris Johnson walking into an EU trap?

Robert Henderson

The Daily Telegraph reports (3oth July) that Boris Johnson has said that the UK could stay in the customs union and single market for another two years.   This is potentially fatal for a true  Brexit.

Consider what Johnson is suggesting.:

He wants  the UK to be  to all intents and purposes a  part of the EU for another two years.

He has a tiny majority which is unlikely to  sustain his government for two years.

He is likely to have to call a general election before the two year period  is over either because his small majority  makes government impossible or as the consequence of a vote of No Confidence  being passed  which is not overturned by a vote of confidence within 14 days.

The Fixed Term Parliaments Act  muddies  the waters because it either requires two thirds of MPs to vote (that is  two thirds of the 651  seats not  just sitting MPs) .   Labour , SNP and other smaller parties  may not want have been demanding a General Election they would, both collectively or individually,  find it difficult to  vote against an election being called.

In any event the  Fixed Term Parliaments Act means the next General Election has to be held  on 5 May 2022 regardless of the wishes of the House of Commons.

If a General Election  is held there is no guarantee that it will return a  House of Commons which  gives the Tories  a clear majority. We might  find ourselves with  a remainder majority for Labour or a coalition of remainer parties.  such governments would be able to stitch the UK firmly  back into the EU without much difficulty for two reasons, (1)  operationally we would still effectively be in the EU (albeit but with a  loss of privileges) and (2) the at least one senior EU officer has suggested that  reinstating the UK’s membership could be done  without   too much bother.

The recently departed European Commission President Jean-Claude Junker  said this in January 2018:

“Once the British have left under Article 50 there is still Article 49 which allows a return to membership and I would like that. ”

“His suggestion came a day after European Council President Donald Tusk suggested he was open to a “change of heart” from the U.K. on Brexit.

‘Juncker backed him up later Tuesday, saying, “I hope that will be heard clearly in London,” according to the Independent.’

Article 49

Article 49 says this:

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The

European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the

European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.

The conditions of admission and the adjustments to the Treaties on which the Union is founded which such admission entails shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

On the face of it Article 49 does not look las though reapplying for EU membership would be a shoo-in , but the fact that someone as  powerful as  Junker raised the possibility  and was backed up by  another powerful EU apparatchik in   Donald Tusk suggests that  re-joining it would be more or a less a formality . To that reasonable conclusion  can added the facts that both economically  and politically the EU gains from the UK  being within the EU.

Economically the EU gains from both the annual net Dangeld  (around £9 billion) taken from the UK by Brussels), continental EU ‘s massive balance of trade  advantage with the UK (£64billion) and the general advantage of having the fifth largest economy in the world (the UK) as part of the EU.

Politically the great advantage of keeping the  UK in the EU  (probably with  worse terms than we have at present) would be the disincentive it would create for any other EU member  thinking of leaving to leave.

The UK remaining in the EU would  have  other advantages. For example,  having not one but two permanent members of the UN  Security Council (the UK and France)   would be a loss of prestige for the EU and  would  scupper for the foreseeable future the EU’s desire to have a permanent  Security Council seat  for itself. The UK also has some still very handy armed forces and much of UK foreign development Aid  is channelled through EU not allocated directly by the UK. The EU has much to lose and nothing to gain if the UK leaves with no deal.

The reality is that No Deal is really the only certain way of getting out of the clutches of the EU. Embrace it not as an unfortunate way of leaving the EU but the only certain way of leaving the EU because anything short of it will allow the remainer rats to keep on gnawing away at our regained freedom.

Is Boris Johnson walking into an EU trap?

Robert Henderson

The Daily Telegraph reports (3oth July) that Boris Johnson has said that the UK could stay in the customs union and single market for another two years.   This is potentially fatal for a true  Brexit.

Consider what Johnson is suggesting.:

He wants  the UK to be  to all intents and purposes a  part of the EU for another two years.

He has a tiny majority which is unlikely to  sustain his government for two years.

He is likely to have to call a general election before the two year period  is over either because his small majority  makes government impossible or as the consequence of a vote of No Confidence  being passed  which is not overturned by a vote of confidence within 14 days.

The Fixed Term Parliaments Act  muddies  the waters because it either requires two thirds of MPs to vote (that is  two thirds of the 651  seats not  just sitting MPs) .   Labour , SNP and other smaller parties  may not want have been demanding a General Election they would, both collectively or individually,  find it difficult to  vote against an election being called.

In any event the  Fixed Term Parliaments Act means the next General Election has to be held  on 5 May 2022 regardless of the wishes of the House of Commons.

If a General Election  is held there is no guarantee that it will return a  House of Commons which  gives the Tories  a clear majority. We might  find ourselves with  a remainder majority for Labour or a coalition of remainer parties.  such governments would be able to stitch the UK firmly  back into the EU without much difficulty for two reasons, (1)  operationally we would still effectively be in the EU (albeit but with a  loss of privileges) and (2) the at least one senior EU officer has suggested that  reinstating the UK’s membership could be done  without   too much bother.

The recently departed European Commission President Jean-Claude Junker  said this in January 2018:

“Once the British have left under Article 50 there is still Article 49 which allows a return to membership and I would like that. ”

“His suggestion came a day after European Council President Donald Tusk suggested he was open to a “change of heart” from the U.K. on Brexit.

‘Juncker backed him up later Tuesday, saying, “I hope that will be heard clearly in London,” according to the Independent.’

Article 49

Article 49 says this:

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The

European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the

European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.

The conditions of admission and the adjustments to the Treaties on which the Union is founded which such admission entails shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

On the face of it Article 49 does not look las though reapplying for EU membership would be a shoo-in , but the fact that someone as  powerful as  Junker raised the possibility  and was backed up by  another powerful EU apparatchik in   Donald Tusk suggests that  re-joining it would be more or a less a formality . To that reasonable conclusion  can added the facts that both economically  and politically the EU gains from the UK  being within the EU.

Economically the EU gains from both the annual net Dangeld  (around £9 billion) taken from the UK by Brussels), continental EU ‘s massive balance of trade  advantage with the UK (£64billion) and the general advantage of having the fifth largest economy in the world (the UK) as part of the EU.

Politically the great advantage of keeping the  UK in the EU  (probably with  worse terms than we have at present) would be the disincentive it would create for any other EU member  thinking of leaving to leave.

The UK remaining in the EU would  have  other advantages. For example,  having not one but two permanent members of the UN  Security Council (the UK and France)   would be a loss of prestige for the EU and  would  scupper for the foreseeable future the EU’s desire to have a permanent  Security Council seat  for itself. The UK also has some still very handy armed forces and much of UK foreign development Aid  is channelled through EU not allocated directly by the UK. The EU has much to lose and nothing to gain if the UK leaves with no deal.

The reality is that No Deal is really the only certain way of getting out of the clutches of the EU. Embrace it not as an unfortunate way of leaving the EU but the only certain way of leaving the EU because anything short of it will allow the remainer rats to keep on gnawing away at our regained freedom.

IS THE REMAINER CASE BROUGHT IN SCOTLAND LEGALLY VALID IN ENGLAND?

IS THE REMAINER CASE BROUGHT IN SCOTLAND LEGALLY VALID IN ENGLAND?
I should start by saying that I am an English Solicitor and not a Scottish one. 
Scotland has a very different legal system to England. Theirs is based upon Roman Law and not on English Common Law.  I am therefore not qualified to answer this important question as a lawyer – with regard to what approach the Scottish courts will take.
However I would say that the Act of Union 1707 is key to understanding which court has the best claim to jurisdiction over our Parliament.  Have a look here (especially at Article 22) >>> http://rahbarnes.co.uk/union/union-of-1707/union-with-scotland-act-1706/
Then I would suggest also having a look at the Judgment in the Gina Miller case where the  Supreme Court refers to the appeals from Scotland, Wales and from Northern Ireland (in paragraphs 126 to 151) >>> https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf
The combined result of these legal authorities is that the Parliament of the “United Kingdom of Great Britain” which was created by the Act of Union 1707 is one in which the Scottish Parliament was merged into the English Parliament.  The (British) Parliament then continued on the same English constitutional basis as before.  Thus it is English constitutional practice which is the applicable constitutional law and not the ancient Scottish one.
This is also made very clear by the whole basis of the rest of the Gina Miller Judgment in which the Supreme Court relied heavily on pre-Union exclusively English legal precedents to explain and to analyse how the (British!) constitution works. 
So I would expect the challenge to Boris Johnson to fail in the Scottish courts to the extent that there is any attempt to rely on Scottish constitutional law.  If it does not fail there then it should fail in the Supreme Court. 
An additional legalistic reason why this case should fail is that it is seeking a declaration on something that at the moment is merely theoretical (or ‘moot’) and is not challenging an actual decision that has been taken.

Another solicitor’s view on the Defend Brexit case

 This is another solicitor’s view on our case:-


Section 20(4) European Union (Withdrawal) Act 2018

 

‘A Minister of the Crown may by regulations-
 
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 amend subsection (2) in consequence of any such amendment’

The language ‘Treaties are to cease to apply’ derive from Article 50 of the Treaty on European Union

 

               Article 50 of the Treaty on European Union

               Article 50.1 ‘Any Member State may decide to withdraw from the Union in accordance with

               its own constitutional requirements.’

               Article 50.2 ‘A Member State which decides to withdraw shall notify the European Union of Its intention. In 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.’

               Article 50.3 ‘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.’

At the time of drafting and subsequent enactment of the European Union (Withdrawal) Act 2018 the legal default position (in the absence of a concluded withdrawal agreement) was that the United Kingdom would leave the EU on 29th March 2019 at 11 pm. This flowed from the European Union Referendum Act 2015, the result of the 23rd June 2016 referendum for the United Kingdom to leave the European Union, The European Union (Notification of Withdrawal) Act 2017 which conferred 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 (as established by the 2016 referendum), the Prime Minister’s letter of 29th March 2017 notifying the European Council of the United Kingdom’s intention to leave the EU and the provisions of Article 50. 

Accordingly, when enacted and for many months thereafter the definition of ‘exit day’ in the European Union (Withdrawal) Act 2018 was stated to be 29 March 2019 at 11 p.m.

The Prime Minister reiterated on numerous occasions that the United Kingdom would be leaving the EU on 29th March 2019.

 

The power granted to a Minister of the Crown in Section 20(4) European Union (Withdrawal) Act 2018 was extremely limited. It was merely a power to amend a definition in the Act – the definition of ‘exit day’. 

Furthermore, the definition could only be amended by a Minister of the Crown 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.’ In other words, the power granted a Minister of the Crown no discretion or authority to do anything other than record a change of day and time determined by the day and time the Treaties were to cease to apply to the United Kingdom (something which was beyond the power or authority of a Minister of the Crown to determine).

The definition of exit day since enactment of the European Union (Withdrawal) Act 2018 reflected the legal default position of Article 50.3 ‘failing that, two years after the notification’ – 2 years after the notification on 29th March 2017 was 29th March 2019. The definition was precise ’29 March 2019 at 11 p.m.’

There were only two possibilities for the day and time ‘the Treaties are to cease to apply to the United Kingdom’ to change as stated under Article 50:

A withdrawal agreement being concluded before 30th March 2019; or
The European Council in agreement with the Member State concerned (the United Kingdom) unanimously deciding to extend the two-year period 

Before 30th March 2019:-

The Withdrawal Agreement had not been concluded. 

Option 1 did not apply.

There was no new Referendum Act;There was no referendum to establish whether the United Kingdom should extend the Article 50 period and delay the United Kingdom’s departure from the EU;

There was no primary legislation to reverse the intention of the United Kingdom to leave the European Union as set out in the European Union (Notification of Withdrawal) Act 2017;

There was no primary legislation to repeal the European Union (Notification of Withdrawal) Act 2017;

       There was no removal of the Prime Minister’s notification of the United Kingdom’s intention to leave the European Union;

       There was no primary legislation granting the Prime Minister or any other minister power to seek or obtain on behalf of the United Kingdom an extension under Article 50(3) of the Treaty on European Union;

       There was no democratic mandate to reverse the result of the 2016 referendum (on the contrary there was a clear democratic mandate in a general election to implement the result of that referendum);

       There was no change in the fundamental constitutional position as set out in the Gina Miller case;

       ‘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.’

        ‘ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual legislation (and, in some cases, even without any domestic legislation)’

        The United Kingdom (as compared with the Government/ Prime Minister) did not agree to an extension of Article 50; and

         The United Kingdom did not provide authority for anyone to seek or agree an extension of Article 50

In other words, the Member State concerned (the United Kingdom, as compared with the Government/Prime Minister) had not agreed to extend the two-year Article 50 period. 

Option 2 did not apply.

The definition of ‘exit day’ had not changed from 29 March 2019 at 11 pm. Accordingly, a Minister of the Crown did not have the power or authority to change the definition.
 

        The Treaties of the European Union ceased to apply to the United Kingdom on 29th March 2019 i.e. the United Kingdom left the EU on 29th March 2019 without a withdrawal agreement.      

WITHDRAW AGREEMENT – HONEST NEGOTIATION OR TROJAN HORSE?

WITHDRAW AGREEMENT – HONEST NEGOTIATION OR TROJAN HORSE? 

The Homer’s Odyssey tells us of the devious stratagem of Odysseus in creating a wooden horse which tempted the Trojan’s to drag it into their city, without checking whether it had got any Greek soldiers inside, who after dark, were able to creep out and open the gates to the city and let in the Greek Army to rape, pillage and kill or enslave the unwary Trojans and to destroy Troy. 
Similarly the Withdrawal Agreement is superficially not so bad an Agreement. Theresa May and her supporters were attempting to drag in her Withdrawal Agreement, ignoring the hidden provisions of the backstop.  It is these which, which basically mean that the UK would automatically fall permanently into the power of the EU in the near certain event that we cannot satisfy the EU on various tricky provisions, including notably what happens to the Irish border. 
I think very little reflection should have told anybody involved and thinking about it, that it was obvious that we would be falling into the backstop provisions and then, as one of Guy Verhofstadt’s staff described it, have the status of the EU’s First “Colony”. 
One of the reasons why it should be obvious to such people is because the EU is also trying to get Switzerland into almost exactly the same set of provisions as appear in the backstop.  It is clearly a game plan of the EU.
Anyone who has any patriotic pride in our country should never have been willing to accept such an outrageous arrangement.  The revealing thing is that leading “Conservatives” were so unpatriotic that they were willing to agree it. 
Here is an interesting article about the EU’s bullying of Switzerland by Professor David Blake:-
EU bullying of Switzerland – the shape of things to come and how we can fight back
The EU is using bullying tactics to bring Switzerland to heel. This should be a warning to the UK as we fight off the Withdrawal Agreement which seeks to put us in a similar position of inferiority. We should seize the opportunity to join forces with the Swiss.
Switzerland is a free independent country in the heart of Europe and its citizens like it that way. They have made it very clear in referenda that they do not want to join the European Union.
But the EU does not like this at all and it is using all sorts of bullying tactics to bring Switzerland to heel. In 2014, it threatened Switzerland with losing access to EU markets when it voted in a referendum to limit ‘mass migration’ to stop the undercutting of local wages. Switzerland is a signatory to the Schengen Agreement on free movement, but is not a member of either the Single Market or the Customs Union. It eventually backed down.
This just emboldened the EU. Guy Verhofstadt, the European Parliament’s Brexit co-ordinator, and the rest of the EU elite want to turn the EU into an empire and they clearly now see Switzerland as a potential colony.
Switzerland and the EU have around 120 bilateral agreements governing their trading relationships – the so-called Swiss model. This leaves Switzerland with far too much flexibility for the EU’s liking. In short, the Swiss have been allowed too much ‘cherry picking’. This is despite the fact that the EU had a trade surplus with Switzerland of €48bn in 2018 (with exports worth €157bn and imports worth €109bn).
The EU wants to put a stop to the cherry picking. It is currently trying to bring Switzerland under its legal and regulatory control by forcing it to accept ‘dynamic alignment’ with EU rules on migration, social security, and key areas of economic policy in perpetuity – plus final arbitration by the European Court of Justice. Because of Swiss resistance, as these bilateral agreements comes to an end, the EU is refusing to renew them. It has just suspended the trading of Swiss shares on EU stock exchanges and is threatening to withdraw mutual recognition for exports of medical equipment. Switzerland is being systematically closed out of the EU’s economic, transport and energy system until it again backs down. For example, it has been excluded from EU legislation on power grids and network codes. This is despite the fact that around 10% of the EU’s electricity flow between member states passes through Switzerland. The EU is clearly supremely confident that Switzerland would not dream of retaliating. But given the size of the trade surplus and with a lot of intra-EU trade passing through Switzerland, slowing down EU lorries at the border – as the EU is threatening to do with us – must be quite tempting.
All this should be a lesson for us in the UK as we fight off the Withdrawal Agreement with its similar requirement for ‘dynamic alignment’ with EU rules and the final jurisdiction of the ECJ. And, of course, the WA quite deliberately has no termination date, so it gives us no opportunity to renegotiate its terms in the future. It holds in perpetuity. We know from the BBC4 fly-on-the-wall documentary Brexit: Behind Closed Doors broadcast in May 2019 that a member of Verhofstadt’s private office views us as the EU’s ‘first colony’, so Switzerland’s experience should be a warning for us about the shape of things to come when it comes to our future relationship with EU.
It is therefore time not only for us, like the Swiss, to resist any further EU bullying, but to fight back, particularly when it comes to the City of London. The EU is fully aware of the importance of our global financial centre to EU financial stability. This gives London too much power in the EU’s view. This is why it wanted to clip the City’s wings in the WA, by having a relationship based on ‘equivalence’ which the EU can withdraw at short notice without any right of appeal. The City is six times bigger than all the other EU financial centres combined. So the EU’s stance is totally unacceptable and needs to be replaced with either a form of ‘enhanced equivalence’ or ‘mutual recognition’ which cannot be withdrawn unilaterally.
But we should go further, as Matthew Lynn has recently suggested, and form an alliance between the UK and Swiss financial centres: ‘By far the two strongest financial centres in Europe are the City and Zurich. If the two of them teamed up, they could create a network of expertise that would provide a real alternative to the EU – and one to which many European companies, fund managers and investors would flock. … [The EU row with Switzerland offers] the City of London the perfect opportunity to create a rival regulatory regime that covers more than one finance centre’. As the current disastrous plight of Deutsche Bank and the even bigger fiasco of the euro show, the EU is not actually very good at finance and we should not allow ourselves to dragged down by their incompetence.
The EU bullying of Switzerland is too good an opportunity to miss. It’s time for us and the Swiss to fight back. In July 2019, the UK and Switzerland signed an agreement allowing their citizens to work in each other’s country in the event of a no-deal Brexit. There need to be many more deals like this.
Here is a link to where the article originally appears>>>
https://briefingsforbrexit.com/eu-bullying-of-switzerland-the-shape-of-things-to-come-and-how-we-can-fight-back/