Category Archives: Royal courts of justice

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).

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!

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

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

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

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

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

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

^{^[7]} Millerat [81]

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

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

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

BREXIT CASE APPEALED TO THE COURT OF APPEAL

Here is the Order of Mr Justice Spencer:-

It certifies that our Application is “Totally Without Merit”. This is, on the face of it, totally mystifying, as it is obvious that the case is clearly at least“arguable”!

The explanation however lies in the relevant Court Rule which was developed in 2016. This was supposedly to stop unmeritorious immigration claims clogging up the system.

Here is the text of the Totally Without Merit Appeal Rule:-

“Judicial review appeals from the High Court

52.8

(2) Where permission to apply for judicial review ….. has been refused on the papers and recorded as being totally without merit in accordance with rule 23.12, an application for permission to appeal may be made to the Court of Appeal.

(4) An application under paragraph (2) must be made within 7 days of service of the order of the High Court refusing permission to apply for judicial review.

(5) On an application under paragraph (1) or (2), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.

(6) Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (5), the case will proceed in the High Court unless the Court of Appeal orders otherwise.”

We have however appealed in time to the Court of Appeal and here is our “Ground of Appeal”:-

“The learned judge erred in law by finding that it was unarguable that there was not a Prerogative or a statutory power to agree to an extension of the period between notification and withdrawal of a Member State by Article 50 of the TEU.”

We now wait for a single “Lord Justice of Appeal” to rule on the case. That will probably be another wait of several weeks!

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

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

QUEEN’S BENCH DIVISION

THE ADMINISTRATIVE COURT

B E T W E E N :

THE QUEEN

(On the application of THE ENGLISH DEMOCRATS)

Claimant

– and –

THE PRIME MINISTER

First Defendant

– and –

THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION

Second Defendant

WRITTEN SUBMISSIONS OF THE CLAIMANT

INTRODUCTION

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

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

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

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

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

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

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

FACTUAL AND LEGISLATIVE BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE EFFECT OF AN EXTENSION ON DOMESTIC LAW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Emphasis added)

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

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

NO STATUTORY POWER

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

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

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

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

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

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

35 Thus:

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

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

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

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

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

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

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

NO PREROGATIVE POWER

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

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

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

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

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

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

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

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

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

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

‘And illegall and cruell Punishments inflicted.’

45 As the Supreme Court emphasised in Miller:

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

(Para 43)

And:

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

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

(Para 45)

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

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

No Prerogative power save where sanctioned by statute

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

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

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

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

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

Frustration of the purpose of the 2017 and 2018 Acts

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

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

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

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

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

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

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

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

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

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

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

(Emphasis added)

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

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

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

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

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

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

EFFECT OF LACK OF POWER TO EXTEND

Under EU and international law

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

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

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

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

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

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

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

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

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

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

In domestic law

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

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

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

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

STANDING

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

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

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

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

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

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

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

POSTSCRIPT

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

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

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

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

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

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

CONCLUSION

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

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

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

8^thApril, 2019

FRANCIS HOAR

Field Court Chambers,

5 Field Court,

Gray’s Inn,

London WC1R 5EF

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

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

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

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

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

[6] See paras 41 and 44

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

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

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

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

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

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

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

Below is the text of my witness statement.

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

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

2. Introduction

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

3. Background

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Precis of Grounds of this Application

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

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

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

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

5. The Decision

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

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

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

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

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

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

“English Democrats – England Worth Fighting For!”

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

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

6. The Challenge

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

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

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

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

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

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

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

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

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

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

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

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

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

Decision making process

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

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

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

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

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

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

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

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

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

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

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

8. Costs

a) The Costs of the Application for Permission

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

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

and 24th October:-

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

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

b) Judicial Review Costs

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

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

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

The Electoral Commission responded on the 7th November:-

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

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

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

9. Discrimination

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

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

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

10.The European Convention

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

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

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

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

(a) Vires;

(b) Rationality; and

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

14.Vires

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

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

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

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

15.Rationality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16.Lack of Consultation

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

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

Ever imagined that the courts are unbiased? If so, here is your medicine. Read and be cured!

Kirk here – beam me up Scotty!

Here is an excellent and all too true explanation of the institutional bias at the heart of the new style British judiciary. New Labour gerrymandered so many other things so why would anyone imagine they didn’t do so also to the courts?

Ever wondered why our courts have a Leftist bias?

By Daniel Hannan

Why do we need a quango for barristers?

Judicial activism is a problem in almost every country. Judges have a lamentable, if inevitable, tendency to rule on the basis of what they think the law ought to say rather than what it actually says.

But here’s a puzzle. Why do they always seem to be biased in the same direction? Courts are forever striking down deportation orders, but did you ever hear of them stepping in to order the repatriation of an illegal immigrant whom the Home Office had allowed to stay? The imposition by Parliament of minimum prison tariffs for certain offences was howled down as an assault on judicial independence. But maximum tariffs? No problem there. It’s common for warrants to be served against Augusto Pinochet or Ariel Sharon or George Bush; never against Fidel Castro or Robert Mugabe or Kim Jong-un. A minister rules that a murderer should’t be released? Outrageous! A minister rules (in Northern Ireland) that murderers should be released? Quite right.

The US judge Robert Bork wrote a book called Coercing Virtue, which argued that judges were consciously seeking to advance an agenda that had been rejected at the ballot-box. It amounted, Bork averred, to “a coup d’état – slow-moving and genteel, but a coup d’état nonetheless”.

Judges are often open, when speaking extra-judicially, about what they see as their obligation strike down (in Lord Woolf’s phrase) “bad laws”. In one sense, judicial activism is inescapable. Someone, after all, has to be the final arbiter. As Bishop Hoadley of Winchester remarked three centuries ago, “whoever interprets a law may justly be considered the lawgiver, not he who first wrote or spake it”.

Still, why does the judiciary lean Left? Half a century ago, the popular stereotype of a judge was of a stern disciplinarian committed to the absolute defence of property rights. What changed?

Part of the problem is surely the appointments system. Judges used to be chosen by the Lord Chancellor – a system which on paper seemed open to abuse and which, for that very reason, was in practice almost never abused. Successive Lord Chancellors, conscious of their responsibility, would carefully avoid any suspicion of partiality. Then, in 2005, Labour created a Judicial Appointments Commission, which was charged with promoting candidates on the basis, inter alia, of “the need to encourage diversity”. While diversity is certainly desirable (diversity in the fullest sense – of opinion and outlook as well as sex and race), the vagueness of the criterion opened the door to favouritism and partisanship.

Indeed, the prejudice starts further upstream. It’s not easy to be a judge unless you’ve been a QC. The Bar used to be self-regulating, but New Labour changed that, too, creating a quango called QC Appointments. Here, too, one of the criteria is commitment to diversity.

It is vital to stress that this doesn’t mean having more diverse QCs – for which a good case can be made. It means promoting barristers who have a political commitment to “diversity” in the Leftie, public-sector sense of he word. The QCA’s general report, explains that “diversity competence” includes both awareness and action… being aware is not enough: there must be evidence of support for the principle and practice of diversity, or personal action.

For the avoidance of doubt the QCA’s “Approach to the Competencies” report explains:

The Panel sought evidence of a pro-active approach to diversity issues which in outstanding candidates ran like a consistent ‘thread’ through their language and behaviours.

You don’t need to be Richard Littlejohn to see that this is a political test. In the name of diversity, a less diverse cohort of QCs is being created, one whose members are expected to endorse the Left-liberal orthodoxy. Thus can a party that loses office retain power.

It’s worth remembering that the Conservatives were elected on a promise to abolish unelected agencies. Here is an especially superfluous example. Why, after all, should the state have any role in privileging some barristers over others? Couldn’t this be left to the profession itself?
Ministers have scrapped one QCA – the hopeless quango that was supposed to regulate exam boards. Why is the other still hanging around?

http://blogs.telegraph.co.uk/news/danielhannan/100263531/heres-why-the-courts-tend-to-lean-left/

Petty bureaucracy trumps Justice in the Royal Courts

Lord of Injustice Jackson?

Petty bureaucracy trumps Justice in the Royal Courts

As a solicitor practicing in Civil Litigation and as a member (also past President) of my local Law Society, I attended an interesting talk on Thursday given by Matthew Harman, a Partner in the Costs Lawyers, Harmans Costs, Ardenham Lane House, Ardenham Lane, Aylesbury, Bucks HP19 8AA, who seemed very able and switched on talking about the effect of the latest fad of “Reforms” in Civil Litigation. These are known as the “Jackson Reforms”, after Lord Justice Jackson.

Lord Justice Jackson seems to be the very model of the sort of Judge that Derry Irvine and the Labour Party were keen to appoint during their years in office. That is to say he is very Statist in his philosophy about Law, he is very bureaucratically minded and evidently he is not very interested in Justice. That is with the meaning that “Justice” would mean to any right- thinking ordinary Englishman, whether he be (in the traditional phrase) on the back of the “Clapham Omnibus” or not!

Jackson also appears to have the very dogmatic adherence to the details of rules of a petty town hall bureaucrat. Indeed under the Jackson Reforms “Justice” has been redefined to be fundamentally about the administrative convenience of the Court and the State!

As part of this Statist mentality, the Courts are now supposed to “manage” cases. This is of course quite an odd concept, bearing in mind that most judges are former barristers and have therefore absolutely no experience of managing how litigation runs, let alone understanding the underlying economic realities or even for that matter of running or organising a normal business! Yet these same people are now expected to “manage” access to perhaps the most important function that a State has (with the exception of defence), I mean the Administration of Justice!

You may well have heard of one of the products of Lord Justice Jackson’s staggering lack of common-sense in the case of the wronged MP, Mr Andrew Mitchell of so-called plebgate fame, in which the police appear to have lied about what he said. In the Mitchell litigation the courts in their un-wisdom have now ruled that no costs can be recovered from the newspaper which libelled him!

Even worse in recent cases the courts are now saying that if you are even slightly late in putting in your witness statements then you are not allowed to have your witnesses give evidence at the trial!

Tacky looking EU style zip up gowns!

I am normally not one to rush to the European Convention of Human Rights, but with such respect as I can muster for the Lord Justices now wearing their tacky looking EU style zip up gowns and no wigs (therefore no longer looking like traditional English Judges that you could respect), this is a blatant and obvious breach of one of the European Convention’s cornerstone rights, the right to a FAIR TRIAL in which the parties have “equality of arms”.

In my time as a lawyer this is the third time that there has been a mad-cap attempt at a top down reform of the Civil Justice system. In each case it has been motived by Europhile enthusiasm, in particular for the German model of Civil Justice. On each occasion the “reformers” have missed the key feature of the German system which makes that system bearable to the people under it, which is that it is the DUTY of the Court to make the right decision and not of lawyers to do anything other than to assist the Court in making the right decision.

In England the opposite is the case and it is the solicitors’ and barristers’ job to present their client’s case as effectively as they can and the Judge merely in effect arbitrates between the cases that are put before them.

For such a Judge to take on supposedly managing cases with no experience in practical life of doing so, is not only simply absurd, but it inevitably leads to widespread miscarriages of justice.

As a lawyer I feel ashamed that the supposed leaders of our profession should have lent their names to these “reforms”. As a politician, it is yet another example of the contemptible incompetence of our political class that this travesty has been imposed by the laughably mis-named “Ministry of Justice”.

If there was real justice then the Royal Courts of Justice in the Strand, which is such a splendid embodiment of the Victorian respect for the greatness of English law and justice, should be renamed the Royal Courts of Bureaucratic Nit-picking – that is for as long as the Queen will want her Title associated with such a betrayal of our traditions!

But then, of course, for those interested in legal history, we should not be surprised that justice is not safe in the hands of careerist Judges.

In England the reason why justice and common-sense was preserved within our Court system over the centuries was because Juries decided almost all cases of fact and, if the law was likely to work an injustice, very often made their findings in such a way as to ensure that a just result was obtained.

Of course English juries were until the late 1960’s rate payers only, so bring back jury trials for more complicated cases we might need a process whereby a decision was made as to the appropriate level of qualification required of jurors that was related to the complexity of the case.

Hertfordshire English Democrats Supporters Club

Not Left, Not Right, Just English!

Category Archives: Royal courts of justice

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’.

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

QC sets out why the Defend Brexit Case should be heard

BREXIT CASE APPEALED TO THE COURT OF APPEAL

BREXIT CASE APPEALED TO THE COURT OF APPEAL

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

WRITTEN SUBMISSIONS OF THE CLAIMANT

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

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

2. Introduction

3. Background

4. Precis of Grounds of this Application

5. The Decision

6. The Challenge

8. Costs

a) The Costs of the Application for Permission

b) Judicial Review Costs

9. Discrimination

10.The European Convention

14.Vires

15.Rationality

16.Lack of Consultation

Ever imagined that the courts are unbiased? If so, here is your medicine. Read and be cured!

Ever wondered why our courts have a Leftist bias?

By Daniel Hannan

Why do we need a quango for barristers?

Petty bureaucracy trumps Justice in the Royal Courts

Petty bureaucracy trumps Justice in the Royal Courts