Category Archives: eu referendum

COURT OF APPEAL REFUSES TO ALLOW THE DEFEND BREXIT CASE TO HAVE A HEARING

 

COURT OF APPEAL REFUSES TO ALLOW THE DEFEND BREXIT CASE TO HAVE A HEARING


Above are the images of the Order that I have just received, which disappointingly confirms that our case is not going to be allowed to have even a single hearing. (Apologies for the way it has reproduced on this blog!)

The tone of the reasons for the Order is more reasonable than the previous two Orders that we have had in this case. I do however find it interesting that this Judge has come out with yet another set of inconsistent reasoning as to why our case would not succeed.  In my view, as we have now had three different Judges, all of whom have given a different basis on which they are refusing the case.  Speaker Bercow had a yet further different view.  Between them they have vividly shown why this is a case that should have actually been properly heard.  Proper legal argument should have been listened to, so that the Court could have come to a proper reasoned decision.  That would have been the way that a Judicial Review decision would have been dealt with until very recently. 

What we have however uncovered here is, not only the extent of politically biased personal agendas within the Judiciary, but also a drastic deterioration in the general standards of fairness and of open justice in our country. This bodes very ill for the future of a country which once had one of the very best justice systems in the world. The English justice system was seen as the very model of the best system of the idea of the “Rule of Law”. 

I would say that although I do not know Lord Justice Davis, but he must mix with very different people to any that I meet or hear from on social media, since I have yet to come across anybody who thinks that it is right and proper that a Judge who has signed up to the European Law Institute could fairly hear a Brexit case or be considered anything other than biased on the issue of Brexit. 

In the circumstances I have now taken this case as far as it can possibly go in the England and Wales jurisdiction. 

I am continuing with our Application to the European Court of Human Rights on the basis that they would not give us a “public hearing”, the case was not dealt within a “reasonable time”, given its importance, and also that we did not get an “impartial” tribunal. 

I am also pursing the Courts to provide disclosure under the General Data Protection Regulations of the Ministry of Justice’s Case Summary on the front of the Court file. 

I have so far only encountered obstructionism, which suggests to me strongly that the Judges have been given a biased steer on this case by the Case Summary on the outside of the file before they even start to read the papers.  If this wasn’t so there would be nothing to hide!

What do you think?


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

 

 

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

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

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


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

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


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

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

English Democrats Appeal to the European Court of Human Rights

English Democrats Appeal to the European Court of Human Rights

I recently posted, by Airmail, the English Democrats’ Appeal to the European Court of Human Rights in Strasbourg.  This is the court which adjudicates on the European Convention of Human Rights.
Article 6(1) of that Convention says:-
“In the determination of his civil rights…everyone is entitled to a fair and public hearing within a reasonable time by an…impartial tribunal”.
Here is the text of the application that the English Democrats are issuing:-
Application to the European Court of Human Rights
The Applicant brought a case for Judicial Review regarding the implementation of Brexit in respect of the legal position of the UK and of the legal position of all citizens of the UK and, in particular, all those in England who voted to leave the European Union in the EU Referendum and of all “Persons” in the UK. The UK Government sought to get around Parliament by using the Royal Prerogative to extend the Article 50 notice period.     
The Applicant’s Article 6 rights were infringed by Orders made on 19thJune 2019 and on 19th August 2019 and its domestic Appeal remedies have been exhausted (see the case papers).
The Applicant is a political party registered with the UK’s Electoral Commission and is also a “Not for Profit” company limited by guarantee registered with the English and Welsh Companies House.  It has legal personality.
The relevant Application was for a declaration that the Applicant and all the above were out of the European Union on the 29th March 2019 by reason of the expiry of the UK’s Notice Period.  All the legal rights and obligations created by the European Union would therefore not apply to the Applicant nor any of the above and therefore the Application was determinative of the Applicant’s EU “civil rights and obligations”.  Since “Community Law” applies directly in the UK and other EU treaty obligations are incorporated into municipal law the Applicant’s civil rights and obligations under municipal law were affected as well.    
The Applicant’s Judicial Review Application was not dealt with in a timely manner, despite making Applications for it to be expedited.
On an important and urgent question such as this the Court should have dealt with this matter expeditiously which should have been within a matter of 10 weeks, which was the time that the court took to make its decision in the case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 which was a case which, although of constitutional importance, was not of equal constitutional importance to the Application made by the Applicant.
Further, despite the importance of the matter, the Court chose to deal with the matter at a time when the Applicant’s lawyer was absent from the country and to do so in such a way that, unless an Application for an Appeal was dealt with before the Applicant’s lawyer returned from holiday, the case would be dismissed without any hearing because the Court has adopted a procedural rule whereby Judges can declare that an Application for Judicial Review is “Totally Without Merit”, which has the effect of preventing an Applicant from having any hearing at all, let alone a “fair and public hearing”.  This Order is dated 19thJune 2019.
This is a case in which numerous very experienced lawyers, including a retired Court of Appeal Judge, the Rt Hon. Sir Richard Aitkins, and many Queen’s Counsel (Senior Barristers), Barristers and Solicitors had all opined that it was of strong legal merit, so the decision to classify this case as “Totally Without Merit” was legally wrong and seems to the Applicant to be a politically motivated and biased decision intended to prevent the Applicant’s case getting a public hearing.
In so far as Part 54 of the Civil Procedure Rules permits judges to deny applicants for judicial review the right to an oral hearing through the device of marking the application “Totally Without Merit” it is non-compliant with Article 6(1).
Despite the Court’s actions the Applicant did manage to get their Application for Permission to Appeal issued in the Court of Appeal within the time required.  That Application for Permission to Appeal has now been rejected and therefore the Applicant has now been denied any “fair and public hearing” of its Application in breach of Article 6(1).
The general context of this decision is that the Judicial Appointments Commission in England and Wales only allows the appointment of lawyers to become judges who can show “a life-time’s commitment to Equality and Diversity” and therefore its intention is that only Left-wing, Internationalist, Multiculturalist political activists can be appointed as judges.  In practice the JAC reports to the Cabinet Office and is not independent.  Its budget and personnel are largely determined by the Cabinet Office.  
JAC appointees are almost invariably in favour of the UK’s membership of the EU and opposed to the majority decision of the electorate in the UK’s EU Referendum.  People with such views are not “Impartial” on this question. 
In this case, the Lord Justice of Appeal, who finally prevented this case being heard in his Order dated 19th August 2019, is an open advocate of Multi-culturalist “Diversity” and is personally opposed to the Applicant’s political position.  He is a member of the European Legal Institute whose avowed purpose is:- “To evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the Member States.”  It follows that on an Application to try to implement Brexit such as that brought by the Applicant, Lord Justice Hickinbottom is clearly not an “Impartial” figure. 
It was wholly inappropriate and non-compliant with Article 6(1) for a Fellow of the ELI to be assigned to hear a case touching upon the UK’s membership of the EU.  So far as the Applicant is aware no national of an EU Member State who is opposed to membership of the EU by his or her nation state has ever been appointed to be a Fellow of the ELI.
A judicial certification of “Totally without Merit” is a device to prevent the Claimant from being able to get any “fair and public” hearing in court.  This is therefore in breach of Article 6(1) of the European Convention of Human Rights: “In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time by an … impartial tribunal.”
The Applicant has been denied a “fair and public hearing”.  The matter has not been dealt with “within” a reasonable time; and the Tribunal was not “impartial”.  These are all serious breaches of Article 6(1).

CLEARING THE WEEDS IN THE POLITICAL GARDEN

CLEARING THE WEEDS IN THE POLITICAL GARDEN

As any gardener knows, the first thing you have got to do in sorting out a flower bed that has become choked with weeds is to remove all the weeds and cut out any of the dead flowers etc. in order to make it worthwhile digging in your fertilizer or compost and planting your new plants.
This is the sort of stage that we have reached with our Parliament, which is now stuffed, in both the Commons and the Lords, with people who are not merely unpatriotic, but are actually anti-patriotic and are hostile to the very idea of our Nation.  They are Internationalists and Multiculturalists. 
For our national politics to flourish we need to see such weeds removed from our political flowerbed and also all the deadwood and old decayed plants as well, so that we can have a fresh and more honest and a patriotic revival!
In this sense it is welcome to see that Boris Johnson’s Government has had the guts to withdraw the Whip from all those Conservative MPs that betrayed the trust that had been placed in them by voting against Boris Johnson this week.
Even better was seeing Amber Rudd resign form Cabinet and the Conservative Party in response. She is the classic career-minded entryist who, in ideological terms, is a Liberal Democrat Remainer, Multiculturalist, Globalist, but could see that her career prospects would be better if she badged up as a Conservative.
These people were all elected on the ticket of implementing Brexit and, as ‘Conservatives’ were expected to be loyal, not only to their manifesto mandate, the country, but also to their Party Leader.  They proved disloyal on all counts.  They have no place to be remaining in our Parliament and it will be good to have them all thrown out of Parliament come the next General Election.
As for those who have crossed the floor to join other parties, they have gone fully beyond the pale and so will have to stand or fall come the next General Election with their new party rosettes on.  Let’s see what their local electorates make of them then!  I suspect none of them will be re-elected.
Less visibly, our Left-wing biased media has been more coy about reporting the movement of Labour MPs to the Liberal Democrats.  The latest one being Luciana Berger. 
Looked at from the point of view of purging our politics of the corrupt old ideologically meaningless “broad church” Establishment parties of Labour and the Conservatives, both of these developments are to be welcomed.   
We need to move to a politics where its voters can rely upon a party label to tell us much of what is in the political tin, as we would expect to be able to do if we were buying tinned food.  
If an ordinary trader made a business out of putting labels of baked beans on tins of peas, they could expect to be prosecuted under the Trades Description Act.  We urgently need something similar with our politicians to enable us to hold them to account if they fail to deliver on what they promised when they were standing for election.
I notice that those MPs that betrayed their electorates often talk about Edmund Burke’s idea that he was “a representative” of his electorate rather than his electorates “delegate”.  It is however worth remembering that, despite that explanation sounding quite grand, in fact at the next election, when he had proved himself to be unwilling to do what his electorate wanted him to do, he lost his seat! And quite right too! 
We need to move away from the bogus pretences of so-called “Liberal Democracy”, where undemocratic elites hide behind the pretence of democracy.  I think that we need to move instead to a proper functioning “Popular Democracy” where politicians are expected to live up to focussing on doing what is needed to be done to deliver the Will of the People. 
What do you think?

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

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

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

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

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

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

1. Power to notify withdrawal from the EU

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

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

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

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

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


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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

What do you think?

Our 2nd Article 50 case


2ndArticle 50 case

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

Mr Jonathan Stowell                                     

c/o Government Legal Department

Team B6

One Kemble Street

London WC2B 4TS

Dear Sirs


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

Letter Before Claim

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

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

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

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

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

4.    The details of the matters being challenged:-

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

5.    The details of any Interested Parties:-

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

6.    The Issues:-

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

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

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

What is sought from the Respondents is:

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

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

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

8.    ADR proposals:-

N/A

9.    The details of any information sought:-

Not applicable.

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

          Not applicable.

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

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

 0QP

12.  Proposed reply date:-

14 days from the date hereof.

Yours faithfully

Tilbrook’s

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

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

Another solicitor’s view on the Defend Brexit case

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


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

 

‘A Minister of the Crown may by regulations-
 
amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and amend subsection (2) in consequence of any such amendment’

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

 

               Article 50 of the Treaty on European Union

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

               its own constitutional requirements.’

               Article 50.2 ‘A Member State which decides to withdraw shall notify the European Union of Its intention. In light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.’

               Article 50.3 ‘The Treaties shall cease to apply to the State in question from the date of entry

              Into force of the withdrawal agreement or, failing that, two years after the notification

               referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.’

At the time of drafting and subsequent enactment of the European Union (Withdrawal) Act 2018 the legal default position (in the absence of a concluded withdrawal agreement) was that the United Kingdom would leave the EU on 29th March 2019 at 11 pm. This flowed from the European Union Referendum Act 2015, the result of the 23rd June 2016 referendum for the United Kingdom to leave the European Union, The European Union (Notification of Withdrawal) Act 2017 which conferred power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU (as established by the 2016 referendum), the Prime Minister’s letter of 29th March 2017 notifying the European Council of the United Kingdom’s intention to leave the EU and the provisions of Article 50. 

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

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

 

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

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

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

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

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

Before 30th March 2019:-

The Withdrawal Agreement had not been concluded. 

Option 1 did not apply.

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

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

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

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

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

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

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

       ‘it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law.’

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

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

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

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

Option 2 did not apply.

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

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

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):
22nd March 2019         an extension to 22nd May 2019 provided the House of Commons approves the Withdrawal Agreement by 29thMarch 2019; or otherwise until 12th April 2019[2]
11th April 2019           an extension to 31stOctober 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 22nd 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 11thApril:  that is because the European Union (Withdrawal) Act 2019, which was passed on 8th 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 22ndMarch 2019, on the grounds that:-
(1)       No statute in force as at 22nd 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 22ndMarch 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 29th 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 22nd March, this subsequent development could not cure unlawfulness in the 22ndMarch extension.   The Claimant says that if the March extension was not effective,  and so the withdrawal notification took effect on 29th 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 22ndMarch 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 29th 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 22nd March extension changed that position on 30thMarch 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 22ndMarch 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 29th 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 2nd extension.  
30.       The Claimant, however, respectfully disagrees with the final statement by the learned judge:
“… the extension to 31st October 2019 effected by the statutory instrument laid before Parliament at 4:15pm on 11thApril 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
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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 22ndMarch 2019 at [2019] OJ L80 I 
[9]   Reasons paragraph 3 on Order refusing permission
[10]   Reasons paragraph 5 and 6