Category Archives: brexit

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?


IS BORIS SERIOUSLY FOCUSED ON DELIVERING BREXIT?

 

IS BORIS SERIOUSLY FOCUSED ON DELIVERING BREXIT?

For those of us that want to see Brexit delivered and, in particular, are hopeful of a ‘No Deal’ Brexit, Boris Johnson has made various remarks that his friend and campaign advisor, Sir Lynton Crosby would call ‘Dog Whistles’, that is remarks which call us back to heel like well-trained dogs! 
Of course these remarks might be genuine expressions of Boris’ personal determination and ideological commitment to Brexit “Do or die!” 
Alternatively these remarks might well be being said by Boris Johnson purely for reasons of expediency.  It would therefore be worth reminding ourselves of Boris’ history.
The first thing I should say is that I do personally like Boris’ style.  He is clearly an absolute star and a magnetic personality and performer with tremendous charisma.  He has genuine leadership ability which makes a fantastic change from the dispiriting lack of it of Theresa May and her inner circle.  That said let’s consider his position.
Alexander Boris de Pfeffel Johnson was born in the United States and when he attended Oxford University his former tutor at Balliol confirmed that he did so as an American citizen.
More recently as MP for Henley and Editor of the Spectator and then as Mayor of London, Boris had seemed enthusiastically Europhile. 
I remember in a TV programme which he did enthusing on the topic that the EU was the new Roman Empire.  He suggested that what we now needed was a new Caesar Augustus! 
He also at one stage enthusiastically endorsed the idea of Turkey, the land of his Great Grandfather, Ali Kamal (one of the last Sultan’s ministers), joining the EU. 
We then have the occasion when he decided to come out as supporting Leave once David Cameron had called the EU referendum in 2016.  During that campaign he made all sorts of remarks which pleased us Leave supporters. 
However it should be borne in mind that he had done two draft speeches.  One supporting Remain and David Cameron, the other coming out for Leave.  David Cameron has also apparently confirmed that he thought Boris did not believe in Brexit.
I would therefore say it is not clear that Boris coming out for Leave was about commitment and principle, rather than about career and opportunity.
There is also Boris’ family background which is very Europhile, globalist, multi-racial, multi-cultural and metropolitan elitist.  Perhaps not the typical seed bed of patriotism and nationalism!
Now we turn to what is going on at the moment.  Boris has obviously got the leadership of the Conservative Party, partly on the basis of his personality but also partly on the basis of promising to deliver Brexit “Do or die”.  Brexit has therefore been very useful to his career ambitions.
When Boris became Prime Minister, Stephen Barclay became the New Secretary of State for Exiting the European Union.  The two of them still could have agreed by Consent that our case “Defend Brexit” would win and agreed that there be a Declaration that we were out on the 29th.  
Indeed, we could have agreed some other date where we would be out if the Government thought there was any reason for having a different date. 
Instead of doing this, despite the fact that Boris, Jacob Rees-Mogg, Stephen Barclay and many Conservative MPs had been lobbied about it, the Government’s lawyers wrote to me and to the Court of Appeal saying that they had received instructions to reiterate the Government’s pleaded Defence.  Although I have asked for confirmation of who ordered it but I think it highly unlikely that that would have been written if the new Prime Minister and Secretary of State had not ordered it. 
A lot of the noise and froth which we read in the media or hear from Boris’ supporters is that he is being almost martyred for the issue of Brexit by the parliamentary Remainers, it is nevertheless worth pausing and considering that Boris had several opportunities to prevent the then Bill becoming law.  The Conservative Peers had lined up many amendments which would have filibustered the Bill so that it could not pass through the House of Lords before Parliament was prorogued and would therefore have been lost.  It has been reported that Boris personally stood the Conservative Peers down and enabled the Bill to pass without objection. 
He also could have refused or delayed Royal Assent to the Bill. There would then have been a further row about whether that was proper to do, but the time would have ticked away and we would have been closer to achieving Brexit with ‘No Deal’. 
He has now signalled that he would consider a ‘No Deal’ Brexit to be a failure. It is also  worth remembering that on the third occasion he did actually vote for Theresa May’s Withdrawal Deal, which, of course, is really more of an abject and almost unconditional surrender document.  From this we can draw the certain conclusion that Boris is not ideologically committed to opposing Theresa May’s deal.  The question of the deal is purely a matter of expediency for him.
We will see over the coming weeks whether he does take any decisions which advance the chances of a ‘No Deal’ Brexit, or whether he in fact prevents that from happening behind a cloak of ‘Dog Whistle’ remarks to Leavers. 
So you might ask me what I think Boris is actually trying to achieve if it is not a clean break Brexit? 
My answer would be that I think what he is trying to achieve is a General Election with him having a good chance of using the Brexit issue to enable him to destroy the Brexit Party and to get a large majority as a result of the election. 
If that election takes place before the 31stOctober I wouldn’t then be at all surprised if Boris quickly signs us up to what to all intent and purposes is Theresa May’s deal. 
The amusing commentator Rod Liddall suggested that what Boris would sign us up to was “Theresa May’s pig of a deal which Boris had put lipstick and rouge on”!
What do you think?

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).

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?

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.      

BORIS, THE RESCUER OF BREXIT? (OR JUST THE CONSERVATIVE PARTY?)

 

BORIS, THE RESCUER OF BREXIT? (OR JUST THE CONSERVATIVE PARTY?)

We now live in a country where if you rely on the mainstream media for your information then you will be misinformed!
A good example of this was all the hype about Boris’ Government being dominated by hard-lined Leavers.  The longstanding Eurosceptic MP for Wokingham, Sir John Redwood, put us straight on that with this tweet:-
“There has been much misleading comment masquerading as analysis about the nature of the new Cabinet.
There are just two members who voted against the Withdrawal Agreement on all three occasions it came forward, and three who voted against it on two of the three occasions.
There are fourteen who voted Remain plus the Chief Whip.
The big majority of the Cabinet supported Mrs May’s Withdrawal Agreement, and some  were particularly vocal in urging others to do so.”
Boris of course has been a breath of fresh air in whacking Labour all over the court in the parliamentary tennis match.  Boris does also talk a good line in positivity and also of getting us out of the EU by the 31st October “do or die”.  He is also claiming that he is not going to call a General Election before the delivery of Brexit.
Despite this assurance Boris’ behaviour is sounding rather like preparations for a General Election.  The new Leader of the House, Jacob Rees-Mogg, dared Remainers to pass an Act of Parliament revoking the Article 50 Notice.  This may well be part of a strategy to trigger a General Election on the ticket of trying to get Brexit “over the touch line”. 
If so, it should be remembered that all the Tory Remainer rebels, the Gaukes, the Stewarts the Letwins, the Grieves, etc., will get re-elected if the Conservatives do well because there will not have been time to purge them from standing.  An early General Election, whilst good for getting Conservative candidates re-elected, may not help in the slightest with the parliamentary difficulties over Brexit. 
I do think one of the litmus tests of whether or not Boris’ Government genuinely is willing to allow a ‘no deal’ Brexit, is whether or not they show an interest in supporting our “Defend Brexit” case. 
To my knowledge Jacob Rees-Mogg has been spoken to about the Brexit case by at least three people, as well as, of course, being general knowledge amongst Conservative MPs because of the House of Commons Library’s briefing.  It wasn’t therefore a surprise to see in this video clip that Jacob Rees-Mogg knew about the case >>> 

https://www.youtube.com/watch?v=T2tJSpncXmE&feature=share&fbclid=IwAR05UCTJJIwej1VXkIFFKGe8dFhyBQfM8OAIn30E-4fhRmNltXMRnNNOW3k
What was interesting, however, was to see somebody who is not a lawyer trying to make out that he had some information about the case’s chances of success!
Jacob Rees-Mogg’s comments were particularly disingenuous when you consider that he was very happy to talk about his colleague, Bill Cash’s case, which has never actually been a case at all, let alone had any merit, since no proceedings have actually even been issued and it would now be too late to do so. 
So his answer isn’t in fact about whether our case has any merits, his answer is instead indicative of what the Conservative Government under him and Boris are thinking of doing with the case. 
If the real intention of Boris’ Government was to get the UK Out of the EU with ‘no deal’, then not defending our case would be the easiest way to achieve that for them.  It would not then be possible for Parliament to block either the case or thus Brexit.  It would also not be possible for Parliament to legislate to prevent it.  It would simply be declared as the law by the court, at which point there would be nothing that any of the Remainer Establishment figures could do about it.  If that outcome does not suit Boris’ Government that must be because they have some other agenda. 
My suspicion is that their agenda is simply to bolster the Conservative Party’s position in a General Election to be announced.  This could be perhaps in October to take place in November when the clocks have gone back.  It is then dark when people return from work. This will dramatically reduce Labour’s advantage in having an estimated a quarter of a million canvassers. 
I may be proved wrong, but if so, I would expect the case to be given a fair wind by Government. 
Let us see what happens!

BREXIT CASE APPEALED TO THE COURT OF APPEAL

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!

BREXIT CASE UPDATE

 

BREXIT CASE UPDATE

Since issuing the English Democrats’ case (claiming a Declaration that the UK left the EU on the expiry of our Notice on the 29th March 2019), the Administrative Court has not shown itself to be either as speedy or efficient at dealing with the case. 

This is despite my having made an initial Application to have the case expedited. This resulted in the Government Legal Department undertaking to provide their Grounds of Resistance by just before Easter on the 17th April  (usually they get a full 21 days).  Mr Justice Supperstone made an Order which was emailed to me confirming that in these circumstances he was not going to order the Government Legal Department to serve their Grounds of Resistance any sooner. 
Matters then did not progress as speedily as we would all have hoped.  So I then made a further Application for the case to be expedited, but received no indication as to when any hearing was going to occur.  So after waiting for almost another two months I went off on holiday for two weeks starting on the evening of Friday, 14th June. 
Until Tuesday, 25th June we had heard nothing further from the Court.  Although I am sole practitioner and most sole practitioners going on holiday simply close their office, I do have my assistant come in to check the post regularly and, of course, to answer any telephone calls, etc. 
I was therefore dismayed to hear that a decision had been made, the image of which I am showing on this blog, not only refusing to give Permission, which would be strange enough, given Sir Richard Aitkin’s, the retired Court of Appeal Judge’s public comment that this case is “strongly arguable”, which is well above the merely “arguable” threshold that is supposed to guarantee permission to Judicially Review.  But this Order went much further than that and certified on the flimsiest of grounds that our case was “Totally Without Merit”. This is a shorthand for a new procedure introduced in order to make things as difficult as possible for immigration cases, where the Administrative Court has been inundated with legally unmeritorious applications by litigants in person. 
If a case is certified as being Totally Without Merit, then the consequence is that an application to Appeal to the Court of Appeal has to be made within 7 days of deemed service. 
As you can see from the Court’s covering letter, the letter was purportedly sent out on Wednesday, 19th June and therefore deemed served on Friday, 21st.  In fact it had not arrived on Friday, 21stas my post was fully opened on that day. 
It is possible that it arrived on the 22ndor on Monday, 24th, as it was opened when my assistant next went into the office on Tuesday, 25th. 
To catch me out it needed me to go away for two weeks or more.  This holiday was the first time that I have done so for over 20 years!
The Order was then faxed that morning to our barrister, Francis Hoar, and work commenced to get this Application issued on or before the last date for issuing it, which was Friday, 28th. 
Francis did a superb job and got the Application ready for us to be able to issue it, despite my still being away on holiday. 
If my personal practice had not been as thorough and as conscientious as it is, I think it is likely that I would have returned from holiday to find that we had already missed the deadline. 
Whenever I think about this situation I find it hard to believe that this “coincidence” is purely accidental.  This was the one opportunity in the whole of the last two months in which we could lose this case provided the paperwork was sent when it was, as explained above. 
Furthermore it is odd that the less important Order of Mr Justice Supperstone’s was emailed but this much more important Order was only posted. Nor were we given any advance warning.  I do not think I will ever be able to prove the attempted set up that seems to have happened here, but fortunately we have managed to keep the case on track by getting the Application in on time.
 If my suspicions are right it is a very sad reflection on the state of “justice” in this country which has now become so politicised that we seem to have lost the “Rule of Law” which was the cornerstone of England’s hard won and hard fought ancient Constitution.
A further matter emerged when there was the easily made confusion between two Mr Justice Spencers.  The signature on the Order looks like Mr Justice Martin Spencer, but it turns out on very close inspection of the documentation to be that of Mr Justice Robin Spencer aka Sir Robin Spencer.  
Inspection of the Facebook profile and Twitter account of Mr Justice Martin Spencer revealed that he was an outspoken Remainer. As it was put in a legal analysis:-

 

18. On the said Twitter site appear the following comments by Mr Spencer QC (as he then was) (all dated 24.6.2016, the day the referendum result was announced), none of which have since been removed, all of which were publicly available on 27.6.2019 and all of which continued to be published by Martin Spencer J up to the later date.  In chronological order:
(1)       ‘If Europe disintegrates, with the UK as the catalyst, we will have betrayed our children and grandchildren.’
(2)       This is not something we can undo in 3 or 4 years’ time as in a general election, it will affect generations.’
(3)       We have taken leave of our senses, as a country.  This was a time to stand together, untied with Europe in our beliefs and values.’
19.       The implied meaning of the above tweets includes the statements that (in respect of each numbered tweet using the same sub-paragraphs) those voting and those political parties advocating Leave in the referendum:
(1)       Are responsible:
(a)       for betraying their children and grandchildren;
(b)       for increasing the likelihood of the ‘disintegration’ of Europe;
(2)       Have damaged the UK for generations (this is imputed from the fact that the second comment immediately followed the first); and
(3)       Have, in particular, ‘taken leave of [their] senses’ and have betrayed the values that all should share.
21.       On 6.7.2016, on the said FB site, the user (it is assumed Mr Spencer QC, as he then was) made the following comment, which remained publicly available to view and thereby published on 27.6.2019:
‘Apparently, since the referendum vote, support for staying in the EU has risen in Denmark from 59.8 % to 69 %.  We appear to be a laughing stock in the rest of Europe.  This is Der Spiegel’s verdict: ‘the result has “created new rifts: between old and young, London and the provinces, the English and the Scottish. In the end, further referenda may follow, with the result that the once-powerful UK could be transformed into a loose alliance of marginalised mini-states.” Quite.’
22.       The implied meaning of the above comment was that those voting Leave or advocating such a vote have:
(1)       Made the UK the laughing stock of Europe;
(2)       Been responsible for creating the rifts set out;
(3)       Increased the likelihood of the break-up of the UK into a loose alliance of marginalised mini-states, including England as an independent country;
And that:
(4)       The emergence of England as an independent country would be an extremely negative outcome, were it ever to occur.
23.       In respect of the implied meaning alleged at para 17 (3) above, the author reaches the conclusion that the break-up of the UK would be caused by rifts between (inter alia) England and Scotland; and went on to allege the emergence of ‘mini-states’.  Although England has a population of around 55 million, the most logical meaning of this other to an ‘idiot in a hurry’, informed by the well-known fact that England voted Leave and Scotland did not, was that England would be one of those states.
24.       The FB user, who appears to have been Mr Spencer QC (as he then was) also advertised the fact that he had signed an online Petition that said as follows:
‘We the undersigned call upon HM Government to implement a rule that if the remain or leave vote is less than 60% based a turnout less than 75% there should be another referendum.’
25.       The implied meaning of the above statement, which (if the site is his) Mr Spencer QC endorsed and which, in his judicial office, he continues to endorse through its publication, is that the Referendum result, in which under 60 % of the population on a turnout under 75 % voted to Leave, was illegitimate and that the UK should therefore remain in the EU in spite of the Referendum result.
Although these comments cannot have any bearing on this case, they do however have a strong bearing on what is happening to our legal system in which we have a Blairite Judicial Appointments Commission which will only appoint Judges who can “demonstrate a life time’s commitment to Equality and Diversity” and are therefore ideologically only of the multiculturalist Left and therefore almost all Remainers. 
This system of appointment clearly needs to be changed to ensure that people are only appointed as Judges as they are the best lawyers and their politics is ignored.  If the British Political Establishment are displaced then we can expect the terms of reference to the Judicial Appointments Commission to be changed after each General Election and appointments to be made only of those who are supporters of whichever party is then in power!

WHAT THE MEDIA BLACKOUT TELLS US ABOUT THE MAINSTREAM MEDIA

WHAT THE MEDIA BLACKOUT TELLS US ABOUT THE MAINSTREAM MEDIA

Donald Trump and his Campaign Team famously developed the expression “Fake News” to comment on the left-liberal, blatant bias of the US mainstream media. 
In this country I think the mainstream media are at least as biased as the US media. 
For the last three years or more we have had wall to wall and utterly shameless and blatant Remainer bias from the BBC and all the other main broadcast channels on any topic relating to Brexit. 
Charles Moore on last week’s Question Time brilliantly exposed the BBC’s and Question Time’s bias against Leavers, whilst the BBC’s Fiona Bruce desperately tried to shut him up!
The mainstream media’s bias however goes much further than disproportionate coverage to include outright censorship of any story which goes against their internationalist, left-liberal bias. 
I think few stories illustrate this better than the coverage of our case. 
The English Democrats are bringing a High Court case using the Judicial Review procedure to sue Theresa May and the Secretary of State for Exiting the European Union (Case No. CO/1322/2019).  We have a strong case that, according to law, the United Kingdom left the European Union on the 29th March at the expiry of our two year notice period which was given under Article 50 of the Lisbon Treaty. 
This case is therefore the only realistic chance that we have of getting any real Brexit.  The media are falling over themselves to report displacement activity that cannot make any difference.  For example, as I write this, they are falling over themselves to report about Nigel Farage and his new Party.  The safe fact for the Remain supporting media is that however many MEPs Farage’s Party wins it cannot make any difference whatsoever to whether we are in or out of the EU or on what terms!  Misdirecting Leave support into that cul-de-sac is therefore useful for Remain.
I and numerous others whom I know of have tried very hard to get the mainstream media to report about the case, but with very little success. 
This is of course also in stark contrast to the massive and persistent reporting of the much less important constitutional case brought by Gina Miller to require the Government to get an Act of Parliament to permit it to serve the Article 50 Notice.  That case, as I am sure anybody who listened to any of the “news” output of the mainstream media, received literally massive coverage because the Remainers in the media thought that it might derail Brexit.
By contrast our case which may actually get a Declaration that we are already Out of the European Union has only had the Mail On-line do two items about it, both of which were top trending political news stories on-line. 
I have been informed that those in charge of the Mail On-line were told by the Daily Mail’s new editor (who is a Remainer) that they were to let the story drop. 
The Express On-line also began to cover the story, but again I understand they were told to drop the story by their new owners from the Mirror Group. 
Apart from those two media outlets there has been, so far as I am aware, no other coverage at all. 
Given the significance of this case I think we can draw some important conclusions from this treatment. 
The first is that despite the claims of the mainstream media to report “News”, this claim is quite simply ‘fake news’.  The so-called “News” which they report is subordinate to their propaganda objective of furthering their internationalist, left-liberal bias. 
So, any of us that take our understanding of what is going on in the world from the mainstream media is therefore running a big risk that their awareness of news will be so tainted by this propaganda objective that their understanding may well be led into fundamental errors about what is going on. 
This of course has important implications for political policy and decision making because our politicians seem to take much of their agenda from what appears in the mainstream media.  No wonder they make such a mess of almost every decision that they are involved in!
Also no wonder so many people are misled into supporting displacement activity!
Another important point to consider is the effectiveness of social media.  Despite not receiving any proper coverage by the mainstream media, we have still been able raise over £80,000 toward the case.  That does enable us to carry on with the case with some confidence.  However against that we have to set what happened with the Gina Miller case where the fake news mainstream media furore led to the funding of a case which cost over £1.2 million!  Social Media therefore is helpful but does not fully compensate us for being completely cut out of the mainstream media reporting. 
Last but not least, it also does need to be noted that the Remainer cartel politicians like Yvette Cooper and Tom Watson have been campaigning for social media access to be cut-off for all those who oppose the current British Political Establishment cartel. 
Our window of potential opportunity on social media is therefore already being closed off, as the recent treatment of Tommy Robinson so vividly demonstrates!
This of course means that it is urgent to find ways to break through politically before the window of opportunity finally closes on us!