Category Archives: English Democrats

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 19^th 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 5^th 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).

English Democrats Appeal to the European Court of Human Rights

I recently posted, by Airmail, the English Democrats’ Appeal to the European Court of Human Rights in Strasbourg. This is the court which adjudicates on the European Convention of Human Rights.

Article 6(1) of that Convention says:-

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

Here is the text of the application that the English Democrats are issuing:-

Application to the European Court of Human Rights

The Applicant brought a case for Judicial Review regarding the implementation of Brexit in respect of the legal position of the UK and of the legal position of all citizens of the UK and, in particular, all those in England who voted to leave the European Union in the EU Referendum and of all “Persons” in the UK. The UK Government sought to get around Parliament by using the Royal Prerogative to extend the Article 50 notice period.

The Applicant’s Article 6 rights were infringed by Orders made on 19^thJune 2019 and on 19^th August 2019 and its domestic Appeal remedies have been exhausted (see the case papers).

The Applicant is a political party registered with the UK’s Electoral Commission and is also a “Not for Profit” company limited by guarantee registered with the English and Welsh Companies House. It has legal personality.

The relevant Application was for a declaration that the Applicant and all the above were out of the European Union on the 29^th March 2019 by reason of the expiry of the UK’s Notice Period. All the legal rights and obligations created by the European Union would therefore not apply to the Applicant nor any of the above and therefore the Application was determinative of the Applicant’s EU “civil rights and obligations”. Since “Community Law” applies directly in the UK and other EU treaty obligations are incorporated into municipal law the Applicant’s civil rights and obligations under municipal law were affected as well.

The Applicant’s Judicial Review Application was not dealt with in a timely manner, despite making Applications for it to be expedited.

On an important and urgent question such as this the Court should have dealt with this matter expeditiously which should have been within a matter of 10 weeks, which was the time that the court took to make its decision in the case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 which was a case which, although of constitutional importance, was not of equal constitutional importance to the Application made by the Applicant.

Further, despite the importance of the matter, the Court chose to deal with the matter at a time when the Applicant’s lawyer was absent from the country and to do so in such a way that, unless an Application for an Appeal was dealt with before the Applicant’s lawyer returned from holiday, the case would be dismissed without any hearing because the Court has adopted a procedural rule whereby Judges can declare that an Application for Judicial Review is “Totally Without Merit”, which has the effect of preventing an Applicant from having any hearing at all, let alone a “fair and public hearing”. This Order is dated 19^thJune 2019.

This is a case in which numerous very experienced lawyers, including a retired Court of Appeal Judge, the Rt Hon. Sir Richard Aitkins, and many Queen’s Counsel (Senior Barristers), Barristers and Solicitors had all opined that it was of strong legal merit, so the decision to classify this case as “Totally Without Merit” was legally wrong and seems to the Applicant to be a politically motivated and biased decision intended to prevent the Applicant’s case getting a public hearing.

In so far as Part 54 of the Civil Procedure Rules permits judges to deny applicants for judicial review the right to an oral hearing through the device of marking the application “Totally Without Merit” it is non-compliant with Article 6(1).

Despite the Court’s actions the Applicant did manage to get their Application for Permission to Appeal issued in the Court of Appeal within the time required. That Application for Permission to Appeal has now been rejected and therefore the Applicant has now been denied any “fair and public hearing” of its Application in breach of Article 6(1).

The general context of this decision is that the Judicial Appointments Commission in England and Wales only allows the appointment of lawyers to become judges who can show “a life-time’s commitment to Equality and Diversity” and therefore its intention is that only Left-wing, Internationalist, Multiculturalist political activists can be appointed as judges. In practice the JAC reports to the Cabinet Office and is not independent. Its budget and personnel are largely determined by the Cabinet Office.

JAC appointees are almost invariably in favour of the UK’s membership of the EU and opposed to the majority decision of the electorate in the UK’s EU Referendum. People with such views are not “Impartial” on this question.

In this case, the Lord Justice of Appeal, who finally prevented this case being heard in his Order dated 19^th August 2019, is an open advocate of Multi-culturalist “Diversity” and is personally opposed to the Applicant’s political position. He is a member of the European Legal Institute whose avowed purpose 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.” It follows that on an Application to try to implement Brexit such as that brought by the Applicant, Lord Justice Hickinbottom is clearly not an “Impartial” figure.

It was wholly inappropriate and non-compliant with Article 6(1) for a Fellow of the ELI to be assigned to hear a case touching upon the UK’s membership of the EU. So far as the Applicant is aware no national of an EU Member State who is opposed to membership of the EU by his or her nation state has ever been appointed to be a Fellow of the ELI.

A judicial certification of “Totally without Merit” is a device to prevent the Claimant from being able to get any “fair and public” hearing in court. This is therefore in breach of Article 6(1) of the European Convention of Human Rights: “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 Applicant has been denied a “fair and public hearing”. The matter has not been dealt with “within” a reasonable time; and the Tribunal was not “impartial”. These are all serious breaches of Article 6(1).

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 29^thMarch!

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 29^th 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?

QC sets out why the Defend Brexit Case should be heard

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

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

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

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

Here is the text of the Skeleton Argument:-

CLAIMANT’S SKELETON ARGUMENT for APPEAL

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

The Issue

2. The issue between the parties is this:-

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

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

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

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

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

(emphasis added)

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

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

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

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

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

6. The Defendant argues:-

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

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

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

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

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

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

European Communities Act 1972

European Union Referendum Act 2015

European Union (Notification of Withdrawal) Act 2017

European Union (Withdrawal) Act 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is this issue one of domestic law or EU law?

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

“… in agreement with the Member state concerned …”

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

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

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

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

The learned judge’s error

27. The learned judge commences his reasons:

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

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

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

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

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

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

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

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

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

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

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

Endnote

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

Conclusion

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

ANTHONY SPEAIGHT Q.C.

FRANCIS HOAR

counsel for the Claimant 12 July 2019

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

Please share.

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

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

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

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

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

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

^{^[7]} Millerat [81]

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

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

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

BULLSEYE! OUR OPPONENTS RAVE AGAINST OUR LEAFLET!

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

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

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

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

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

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

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

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

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

Mr Daniel M:-

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

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

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

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

Many thanks for inspiring me to vote again”

Mr Tom H:-

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

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

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

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

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

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

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

From Heather:-

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

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

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

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

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

From Natty N:-

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

That’s exactly what your leaflet is. Junk.

You racist cunts.

Not a single brain cell between you!

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

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

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

Maybe look a little closer to home.

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

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

It’s fucking pathetic.

English and proud!?

Fuck off. We’re all earthlings.

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

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

Go fuck yourselves.”

From Julie W:-

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

From Helen:-

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

From Adam H:-

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

From Tina C:-

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

From Sylvia A:-

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

From ‘A normal person’:-

“You Nazi cockwomble.”

From Liz P:-

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

From Gemma T:-

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

From Mosteve:-

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

From: Mr J:-

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

From Mark F:-

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

From Vanessa S:-

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

From James S:-

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

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

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

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

BULLSEYE! OUR OPPONENTS RAVE AGAINST OUR LEAFLET!

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

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

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

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

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

Mr Daniel M:-

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

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

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

Many thanks for inspiring me to vote again”

Mr Tom H:-

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

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

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

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

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

From Heather:-

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

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

From Natty N:-

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

That’s exactly what your leaflet is. Junk.

You racist cunts.

Not a single brain cell between you!

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

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

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

Maybe look a little closer to home.

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

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

It’s fucking pathetic.

English and proud!?

Fuck off. We’re all earthlings.

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

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

Go fuck yourselves.”

From Julie W:-

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

From Helen:-

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

From Adam H:-

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

From Tina C:-

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

From Sylvia A:-

From ‘A normal person’:-

“You Nazi cockwomble.”

From Liz P:-

From Gemma T:-

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

From Mosteve:-

From: Mr J:-

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

From Mark F:-

From Vanessa S:-

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

From James S:-

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

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

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

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

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

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

QUEEN’S BENCH DIVISION

THE ADMINISTRATIVE COURT

B E T W E E N :

THE QUEEN

(On the application of THE ENGLISH DEMOCRATS)

Claimant

– and –

THE PRIME MINISTER

First Defendant

– and –

THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION

Second Defendant

______________________________________________________

CLAIMANT’S REPLY TO THE DEFENDANTS’

SUMMARY GROUNDS OF RESISTANCE

_____________________________________________________

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

INTRODUCTION

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

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

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

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

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

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

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

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

SUBSTANCE OF THE RESPONSE TO THE CLAIM

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

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

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

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

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

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

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

AFTERWORD

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

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

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

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

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

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

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

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

23^rd April, 2019

FRANCIS HOAR

Field Court Chambers,

5 Field Court,

Gray’s Inn,

London WC1R 5EF

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

THE ADMINISTRATIVE COURT

Claim No. CO/1322/2019

B E T W E E N :

THE QUEEN

(On the application of THE ENGLISH DEMOCRATS)

Claimant

– and –

THE PRIME MINISTER

First Defendant

– and –

THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION

Second Defendant

_____________________________________

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

_____________________________________

Francis Hoar

Field Court Chambers,

5 Field Court,

Gray’s Inn,

London WC1R 5EF

Robin Tilbrook

Tilbrooks Solicitors

Quires Green

Willingale

Essex

CM5 0QP

Telephone: 01277 896 000

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

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

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

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

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

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

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

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

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

Here is his effort to attack our claim:-

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

SUMMARY GROUNDS OF RESISTANCE

__________________________________________________________

INTRODUCTION

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

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

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

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

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

THE LEGAL CONTEXT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESPONSE TO THE CLAIM

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

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

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

19. So far as concerns the 2018 Act:

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

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

20. So far as concerns the 2019 Act:

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

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

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

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

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

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

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

SIR JAMES EADIE QC
CHRISTOPHER KNIGHT

17 April 2019

WHAT THE MEDIA BLACKOUT TELLS US ABOUT THE MAINSTREAM MEDIA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hertfordshire English Democrats Supporters Club

Not Left, Not Right, Just English!

Category Archives: English Democrats

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’.

English Democrats Appeal to the European Court of Human Rights

English Democrats Appeal to the European Court of Human Rights

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

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

QC sets out why the Defend Brexit Case should be heard

BULLSEYE! OUR OPPONENTS RAVE AGAINST OUR LEAFLET!

BULLSEYE! OUR OPPONENTS RAVE AGAINST OUR LEAFLET!

BULLSEYE! OUR OPPONENTS RAVE AGAINST OUR LEAFLET!

BULLSEYE! OUR OPPONENTS RAVE AGAINST OUR LEAFLET!

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

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

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

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

SUMMARY GROUNDS OF RESISTANCE

INTRODUCTION

THE LEGAL CONTEXT

RESPONSE TO THE CLAIM

WHAT THE MEDIA BLACKOUT TELLS US ABOUT THE MAINSTREAM MEDIA

WHAT THE MEDIA BLACKOUT TELLS US ABOUT THE MAINSTREAM MEDIA