Category Archives: european communities act

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
If you would like to help us bring this case to the Court of Appeal please do not forget to donate to https://www.englishdemocrats.party/brexit/battle/fund.  Also do please make sure that your MP knows about the case and also help us try to break through the media blockade!
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[1]  Defendant’s Summary Grounds of Resistance paragraph 2(a)   
[2]    European Council Decision at [2019] OJ  L80
[3]   European Council Decision at [2019] OJ  L101
[4]  Defendant’s Summary Grounds of Resistance paragraph 2(a). 
[5]  Summary Grounds of Resistance paragraph 21 
[6]  Summary Grounds of Resistance paragraph 21, quoting from Miller at [89].
[7]  Millerat [81] 
[8]    European Council Decision of 22ndMarch 2019 at [2019] OJ L80 I 
[9]   Reasons paragraph 3 on Order refusing permission
[10]   Reasons paragraph 5 and 6

DECLARATION THAT THE UNITED KINGDOM LEFT THE EUROPEAN UNION ON 29TH MARCH

This is our PRESS RELEASE:-

 ENGLISH DEMOCRATS – CLAIM FOR A DECLARATION THAT THE UNITED KINGDOM LEFT THE EUROPEAN UNION ON 29TH MARCH 2019


On 2nd April the English Democrats, the English nationalist political party, issued a judicial review claiming the Prime Minister could not lawfully agree to an extension to the period before the United Kingdom could leave the European Union under Article 50 of the Treaty on European Union.  The Court is asked to declare that, because she had no such power, the UK automatically left the EU on 29th March – the original ‘exit day’, two years after notification was made.
This challenge was to the extension offered by the EU on 27.3.2019 and accepted by the PM on 28th March not to the additional extension the PM claimed to agree to today (11th April).
There is a link below to the Submissions filed in support of the challenge.  The Government is expected to reply by 17th April.
The English Democrats’ case is that the PM has no statutory power to agree to an extension.  The change to ‘exit day’, in a statutory instrument under the European Union Withdrawal Act 2018, can only be made if the Article 50 period has already been extended under international law.  If the PM had no power to extend, Parliament could not lawfully make the statutory instrument.
The English Democrats rely on the Supreme Court decision in Miller v Secretary of State, which found that the government cannot change how and whether EU law applies to the UK by the Royal Prerogative.  The PM could only notify under Article 50 under the EU (Notification of Withdrawal) Act 2017.  The inevitable result was that the UK would leave the EU after two years, when EU law would cease to apply to the UK.  Any extension would change the law by making EU law apply beyond that date, which the Act did not give the PM the power to do.
In addition, the English Democrats’ case (also relying on Miller) is that an agreement to extend the Article 50 period would frustrate the purpose of the 2017 and 2018 Acts; particularly as there is no restriction on the length of any potential extension and the number of extensions that may be requested – as the latest extension has shown.
The ‘Cooper-Letwin’ Act giving Parliament power over extension requests has no effect, as no further extension could be given if the UK had already left the EU by the time it came into law.
The English Democrats rely on the Wightman decision of the European Court of Justice in support of our contention that, under EU law, the PM can only agree to an extension ‘on behalf of the UK’ if she has the constitutional authority to do so.  Therefore, the UK left the EU on 29thMarch under EU as well as UK law.
Former Court of Appeal judge, Sir Richard Aikens, has said the English Democrats’ argument is at least ‘highly arguable’, see https://www.dailymail.co.uk/news/article-6882583/Former-appeal-judge-says-legality-Brexit-extension-tested-court.html.
Solicitor Robin Tilbrook, who is the Chairman of the English Democrats, said that:-
“The good news for all those who voted Leave is that we could already be Out of the EU without being saddled with Theresa May’s appallingly bad deal!  The challenge to Leave supporters is that this case is our best and maybe our only chance of actually getting out of the EU.  This means that we must win it at all costs!  I therefore appeal to all Leave supporters to put all differences aside and to unite in supporting this case”  
The claim is being crowd-funded and donations can be made here: https://www.englishdemocrats.party/donate

The English Democrats’ Submissions in full have been published here: https://robintilbrook.blogspot.com/2019/04/detailed-submissions-in-re-queen-on.html

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

IN THE HIGH COURT OF JUSTICE                                        Claim No. CO/1322/2019
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
B E T W E E N :
THE QUEEN
(On the application of THE ENGLISH DEMOCRATS)
                                                                                                                               Claimant
– and –
THE PRIME MINISTER
                                                                                                                    First Defendant
– and –
THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
                                                                                                                Second Defendant
                 

WRITTEN SUBMISSIONS OF THE CLAIMANT

                  
INTRODUCTION
1                     The Claimant is a limited company (reg. no. 6132268) and a political party registered with the Electoral Commission pursuant to the Political Parties, Elections and Referendums Act 2000 (‘PPERA’).
2                     The Prime Minister exercises powers, on behalf of the Crown and pursuant to statute, concerning relations between the United Kingdom and the European Union (‘the EU’; ‘the Union’).  This claim concerns the derivation and extent of those powers.
3                     The Secretary of State for Exiting the European Union (‘the Secretary of State’) has responsibility for legislation and policy relating to the UK’s departure from the EU.
4                     The Claimant seeks a declaration that the purported extension of the United Kingdom’s membership of the EU, purportedly agreed in March 2019, was void; and that, as a matter of domestic, international and EU law, the United Kingdom withdrew from the European Union at 11 pm on 29.3.2019, since when the Treaty on European Union (‘the TEU’) and the Treaty for the Functioning of the European Union (‘the TFEU’, together ‘the Treaties’) have ceased to apply.  The claim is made on the grounds that the Prime Minister had no statutory power to extend and could not do so exercising the Prerogative powers of the Crown.
5                     The Claimant also applies to amend its claim to seek a further declaration that the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 (‘the Exit Day Regulations’) are void, having been made other than in the defined circumstances in which such regulations were permitted to amend the European Union Withdrawal Act 2018 (‘the 2018 Act’); and that the passing of ‘exit day’ has had the legislative consequences provided for by the 2018 Act.
6                     The Court is asked to read the Statement of Facts and Grounds first.
7                     These submissions (also served on the Defendants) are intended to assist the Court with its initial legal analysis of whether the claim is arguable.  The Court’s indulgence is sought, for reasons explained in the accompanying correspondence, to take them into account alongside the Statement of Facts and Grounds before determining permission.  This claim is of the highest constitutional importance and there have also been two significant developments (the passing of a Bill in the House of Commons affecting the ability of the Crown to request extensions and a further purported request by the Prime Minister), outlined below, since the claim was issued.
FACTUAL AND LEGISLATIVE BACKGROUND
8                     On 23.6.2016, in a referendum held in accordance with the European Union Referendum Act 2015, the United Kingdom electorate voted to leave the European Union.
9                     The right of a Member State to withdraw from the EU is regulated by Article 50 (‘A50’; ‘A50.1’, etc) of the TEU, which is as follows:
1.   Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2.   A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3.   The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4.   For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5.   If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
10                 Subsequent to the referendum, the Divisional Court and (on appeal) the Supreme Court found that the Prerogative power of the conduct of foreign relations could not be exercised to notify the EU of the UK’s withdrawal as (inter alia) it would remove rights emanating from EU law through the conduit of the European Communities Act 1972 (‘the 1972 Act’) and it would frustrate the statutory powers and purpose of the said Act  (Miller v Secretary of State for Exiting the European Union [2017] UKSC 5).
11                 Consequently, Parliament (in the European Union (Notification of Withdrawal) Act 2017 (‘the 2017 Act’)) granted the Prime Minister a statutory power to notify the European Council (‘the Council’) of the UK’s intention to withdraw from the Union under A50.  This power was exercised by the Prime Minister on 29.3.2017 (‘the Notification’).  Accordingly, the UK would leave the European Union after a period (‘the A50 period’) of two years after the Notification (which would thereby end on 29.3.2019) unless either: (a) an agreement was concluded with the Union for the UK’s withdrawal earlier than that date; or (b) the Council unanimously decided to extend the A50 period ‘in agreement with the Member State concerned’ (A50.3).  It is the Claimant’s case that a Member State may agree to extend the period only in accordance with its own constitutional arrangements: words expressly restricting the exercise of a Member State’s power to notify (by A50.1) and found by the Court of Justice of the European Union (‘the CJEU’) to restrict a Member State’s power to revoke its notification (Wightman & Others v Secretary of State ((2018) C-621/18).
12                 Parliament enacted the European Union Withdrawal Act in 2018 (‘the 2018 Act’), which provided that ‘exit day’, on which day the Treaties were to ‘cease to apply’ to the UK, was 29.3.2019.  The 2018 Act provides for the continuing domestic effect of EU law as it was on ‘exit day’ and the repeal of the 1972 Act on exit day; and allows the definition of ‘exit day’ to be amended by statutory instrument.  The power to amend that definition may be exercised only where the Treaties are to cease to apply is different to 29.3.2019 (s 20 (4) (a)).  The Act does not purport to provide HM Government with any statutory powers in relation to the conduct of relations with the EU on the international plane (as is submitted below).  Much of the 2018 Act (including s 1, under which the 1972 Act would be repealed on exit day) is not in force.
13                 During the A50 period, the EU and the UK government negotiated a draft Withdrawal Agreement (‘the Draft WA’) that, were it ratified by the UK and agreed by a qualified majority of the Council with the consent of the European Parliament (‘the EP’), would have been a concluded agreement by which the UK would have withdrawn from the Union.  However, s 13 (1) (b) of the 2018 Act prevents UK ratification of a negotiated withdrawal agreement unless and until it is ‘approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown’.  No such resolution having been approved, the Council having failed to conclude ratification by a qualifying majority vote and the EP having not consented, no withdrawal agreement has been concluded between the UK and the EU.
14                 On 20.3.2019 the Prime Minister asked the Council, purportedly on behalf of the UK, to extend the A50 period to 30.6.2019.  At a meeting held on 21.3.2019, the Council decided unanimously to offer to extend the A50 period to one of two dates: (a) 22.5.2019 if the UK Parliament had, by resolution on or before 12.4.2019, approved the draft WA; or (b) otherwise on 12.4.2019.[1]
15                 On 22.3.2019, through a letter from Sir Tim Barrow, the UK’s permanent representative to the EU, the Prime Minister agreed to the extension of the A50 period on the terms set by the Council, doing so purportedly on behalf of the United Kingdom.
16                 On 28.3.2019, purportedly pursuant to the power granted by s 20 (4) (a) of the 2018 Act, the Exit Day Regulations purported to come into effect by affirmative resolutions of both Houses of Parliament.  The said Regulations purport to change ‘exit date’ to the dates by which the Council offered to extend the A50 period, as set out in para 12 above.
17                 Since 29.3.2019 (and since this claim was issued) there have been two further developments of significance.
18                 First, on 3.4.2019, after the House of Commons voted to disapply its long-standing procedural rule that the business of HM Government should have priority at all its sittings, voted for the First to Third Readings of a backbench Bill introduced by the Rt Hon Yvette Cooper MP that would make the UK’s request for and agreement to an extension of the A50 period subject to statutory control.  The Bill was debated in the House of Lords on 4.4.2019 but has yet to complete its three readings in that House.  It is of note that the Speaker of the House of Commons ruled that HM’s Consent[2]was not required before the Bill was introduced.  This strongly suggests that the Speaker was advised that the Bill would not affect the Prerogative and acted on that advice; and that there is therefore no Prerogative power to extend.
19                 Secondly, on 5.4.2019 the Prime Minister wrote again to the President of the Council, purporting to request on behalf of the UK a further extension of the A50 period (on the understanding that the period had already been extended and the UK remained a member of the EU).  This request will be considered at a meeting of the Council on 11.4.2019, the day before the expiry of the purported extension to the A50 period.  It is evidence in practice of the lack of restriction by A50 on the ability of a Member State to request, the Council to offer and a Member State to agree to further extensions of the period.
20                 The Claimant’s case is that the Prime Minister had no lawful authority to ask the Council to extend the period before the UK leaves the EU, or to agree to any extension proposed by the Council in response; and that her purported acceptance of the Council’s offer to extend the A50 period was, accordingly, void.  It is thereby averred that, as a matter of domestic, international and EU law, the United Kingdom withdrew from the European Union at 11 pm on 29.3.2019, since when the Treaties have ceased to apply.
21                 Moreover, it is averred that the Exit Day Regulations are void as the condition precedent that must be satisfied before they may come into effect, that the date on which the Treaties were to cease to apply to the UK was different to 29.3.2019, was not met.  Consequently, the parts of the 2018 Act due to come into force on exit day have been in force since 29.3.2019.
THE EFFECT OF AN EXTENSION ON DOMESTIC LAW
22                 The consequence of notification under A50 was recognised by the Supreme Court to have the inevitable consequence that, but for an extension, the Treaties would cease to apply to the United Kingdom after two years (Miller, paras 36 and 94, in which Lord Pannick QC’s analogy of a bullet being fired at notification, to reach inevitably the ‘target’ of withdrawal, was adopted).  This position must now be modified by the decision of the CJEU that unilateral revocation of notification is possible (Wightman, albeit the Supreme Court accepted that there was no more an agreed position to accept and not argue the irrevocability of notification). 
23                 Parliament, in passing the 2017 Act, provided the Prime Minister with the power to notify, thereby ‘firing the bullet’ that would lead to the UK’s withdrawal from the EU.  It was only through that statutory power that EU law could be ended but by the exercise of that power EU law would automatically cease to apply (through the conduit of the 1972 Act) after two years.  The only exception was through extension of the A50 period or revocation of notification, neither of which are contemplated by the 2017 Act.
24                 Were the A50 period extended (as HM Government claim that it has been), continued EU membership will have considerable consequences on domestic law.  In particular and inter alia:
(1)            All EU Regulations would have continued direct effect;
(2)            The UK would be under a continuing obligation to incorporate Directives into domestic law; and those Directives may be relied on directly if any secondary legislation departs from the Directives by more than the margin of appreciation;
(3)            UK courts[3]must continue to comply with EU law, including both legislation and the case law of the CJEU;
(4)            UK courts continue to have the power to refer questions of EU law to the CJEU, after which its decisions will be binding;
(5)            The developments of EU law to which the UK would be subject in the period of the extension could include criminal offences the UK would be required to create;
(6)            The UK would be obliged to pay into the EU budget; and, such budgetary contributions being calculated on a daily basis, payments have been made (whether lawfully or otherwise) from 11 pm on 29.3.2019; and
(7)            The EU Arrest Warrant would continue to apply, affecting the rights (including under Articles 5 and 6 of the European Convention on Human Rights and Fundamental Freedoms (‘the Convention’)) of all residents of the UK.
25                 The above effects of EU membership on EU law were described, in Miller, as ‘a new constitutional process for making law in the United Kingdom’ (para 62), created by the ‘constitutional character’ of the 1972 Act (para 67).  EU law is not comparable to delegated legislation: for as long as the conduit of the 1972 Act continues to exist ‘EU legislative institutions… make laws independently of Parliament’ (para 68).
26                 There is no limitation to the length of the period by which A50 may be extended.  It is not merely reductio ad absurdum to posit that, were the Crown able to ask for and agree to extensions of the period through its Prerogative, such extensions could change the law of the United Kingdom for years afterwards: either through one or a series of extensions.  The recent history of the applications that have been (purportedly) made and granted demonstrate the far-reaching nature of the power presumed by the Crown. 
27                 First, the Prime Minister’s initial request for an extension was agreed by the EU only on particular terms that the Draft WA must be approved by the House of Commons) and with a varied length dependent upon the actions of the House.  There was no attempt to agree these variations to the original request before the Prime Minister agreed to them – the making of the Exit Day Regulations post-dated that acceptance, by which date (were the Prime Minister’s actions lawful) the period had already been extended in EU and domestic law. 
28                 Secondly, the Prime Minister has since requested a second extension with no prior Parliamentary resolution and would (were her interpretation of her powers correct) have the power to agree to an extension for as long as the EU were prepared to offer without any further Parliamentary involvement whatsoever.
29                 The purported agreement to the extension and the Exit Day Regulations did not repeal the 1972 Act.  Section 1 of the 2018 Act was not then and is not now in force.  Consequently, were Exit Day to have passed (as the Claimant’s maintain that it has) its effect on domestic law would in theory have been limited to the consequential and transitional provision set out in s 23 (8) of the Act (relating to the repeal of the European Union Act 2011); and Schedule 9 (additional repeals of the same Act).
30                 Yet, while the 1972 Act would not technically have been repealed, it would have no continuing effect on domestic law if the UK withdrew from the EU in those circumstances: it would become (and the Claimant’s case is that it has become) a hollow shell.  Section 2 (1) of the 1972 Act, headed “General Implementation of Treaties”, was in these terms:
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly …”
(Emphasis added)
31                 The Supreme Court adopted Professor Finnis’s description of the 1972 Act as a ‘conduit’ through which EU law passed into domestic law (para 65).  But that conduit applies to the rights, obligations (etc) only ‘from time to time’ arising under the Treaties.  As the Supreme Court recognised (at para 24), the Treaty of Lisbon (and A50, which it introduced into the TEU) is incorporated into UK law through the European Communities (Amendment) Act 2008.  Thus, when the Treaties cease to apply to the UK, the rights and obligations of EU membership – including all the effects on domestic law set out in para 24 above – also cease. 
32                 This analysis is not contradicted by the rejection by the majority in Miller of the argument (including in the dissenting judgment of Lord Reed and in the academic opinions of Professor Finnis and others) that there remained a Prerogative power to notify (under A50).  That (unsuccessful) argument was that the foreign relations Prerogative would not frustrate the 1972 Act as it provided a conduit for the application of EU law only for as long as the Treaties applied ‘from time to time’ on the international plane; and that within the Treaties was the right to withdraw.  Their Lordships did not contradict the clear meaning of s 2 (1) of the Act – expressed in the conventional terms of legislation giving domestic effect to international obligations – that the Treaties remained a conduit for the domestic effect of EU law only for as long as those Treaties applied.  Rather, it simply found that the means by which the UK could trigger a process leading to its inevitable (it was thought) withdrawal were restricted to the passage of primary legislation: notification wouldfrustrate the purpose of the 1972 Act and the Prerogative could not be used to remove the rights that applied in domestic law through the conduit of the Act. 
NO STATUTORY POWER
33                 ‘Exit day’ is defined in s 20 (1) of the 2018 Act as 29 March 2019 at 11.00 p.m.  Its importance in domestic legislation is that, were s 1 in force (which it is not), the 1992 Act would be repealed on exit day.  It otherwise has the consequences set out above.
34                 Section 20 of the 2018 Act provides for circumstances in which a Minister may ask for secondary legislation to be approved by both Houses of Parliament, amending ‘exit day.  The relevant provisions of this section are as follows:
(3)       Subsection (4) applies if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1).
(4)       A Minister of the Crown may by regulations—
(a)   amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and
(b)  amend subsection (2) in consequence of any such amendment
35                 Thus:
(1)        The sub-sections create a power to amend primary legislation, a so-called ‘Henry VIII’ clause.
(2)        A Minister may only lay, both Houses of Parliament may only approve (through the affirmative resolution procedure) and the Minister may only (thereafter) make secondary legislation once there is already a ‘day and time’ that the Treaties ‘are’ to cease to apply in the UK.  It must follow that this clause is only operative where, as a matter of EU and international law, the extension has already been agreed and become effective pursuant to A50.  Thus, any regulations passed before the completion of the extension are void as a matter of domestic law. [4]
(3)        It follows that the 2018 Act does not purport to create a statutory power for the Crown to apply and/or agree to an extension on behalf of the UK.  The statutory power is limited to enabling amendment of legislation and has no lawful effect until, as a matter of EU and (because of the effect of the 1972 Act) domestic law, the continued application of the Treaties through EU membership has already been extended.
36                 Moreover, neither the 2017 nor the 2018 Act confer an implied statutory power to extend A50 on the international plane.
37                 The 2017 Act created a power of notification under A50 that was specific and narrowly confined.  The language of the very short statute is not unclear or vaguely worded and does not allow for any construction other than its express meaning.
38                 Section 20 (3) and (4) of the 2018 Act operates only once such power as there may be to extend is exercised lawfully.  Further and alternatively, these sub-sections are ‘Henry VIII’ clauses allowing the modification of primary legislation.  Such clauses may only be construed narrowly, not broadly, and only as an ‘exceptional’ course (see R (Public Law Project) v Lord Chancellor [2016] UKSC 39 at para 27, applying McKiernon v Secretary of State for Social Security, The Times, November 1989, CA).  There is simply no space for the implication of a statutory power into s 20(4) EUWA therefore faces an additional hurdle.
39                 Of significance here is the finding of the Supreme Court in Miller that s 2 (1) of the 1972 Act (quoted above) did not and cannot have created a statutory ‘power’ to notify under A50 on the international plane, as such a power was ‘not one which would be given “legal effect or used in”, or which would be “enjoyed by the United Kingdom”’ (para 79).  Similarly, the power of secondary legislation conferred by s 20 (1) are restricted to circumstances in which the date on which the Treaties cease to apply to the UK has already changed.  They do not purport to affect what power there may be to extend A50, which necessarily must have been exercised before such secondary legislation could be put into effect.[5]
NO PREROGATIVE POWER
The Crown may not legislate, create criminal offences or raise taxes
40                 In Miller, the Supreme Court was concerned with rights that would be removed by the purported operation of the Royal Prerogative (purported because it was found to be in abeyance) and it was for that reason (in addition to the finding that A50 notification would frustrate the statutory scheme of the 1972 Act) that it determined that there was no Prerogative power to do so.  While withdrawal from the EU undoubtedly does remove ‘rights’, it also removes what s 2 (1) of the 1972 Act described as ‘liabilities’, ‘obligations’ and ‘restrictions’.  Aside from financial liabilities (itself a matter of constitutional significance given the control of Parliament over supply), the continued effect of EU law and the inability of the Westminster Parliament to legislate in contravention of it (under the domestic law provisions of the 1972 Act as well as pursuant to the UK’s international obligations) is undoubtedly both an obligation and a restriction (as summarised above). 
41                 In Miller, the Court distinguished the scheme of the 1972 Act from other acts of the Crown on the international plane.  In the latter, the ‘dualist’ theory – which derives from Parliamentary sovereignty – provides that Prerogative acts on the international plane have no effect on domestic law (paras 56-58).  Under the 1972 Act, however, executive acts may change domestic law and curtail the (otherwise) sovereign right of Parliament to legislate ( R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603 and (No 5) [2000] 1 AC 524, cited at para 60 of Miller).
42                 While the rights the Supreme Court sought to protect from the unlawful use of the Prerogative were individual rights created by EU law, the 17thcentury development of constitutional principles restricting the Prerogative (on which the Supreme Court rightly relied[6]) were an objection to the Crown’s right (in particular) to legislate, create criminal offences and raise taxation: from the Case of Proclamations ([1610] EWHC KB J22) to the Bill of Rights 1689 and beyond. 
43                 In the former, Lord Coke (relying on the customs of the Realm from at least the reign of Henry IV expounded by Sir John Fortescue in De Laudibus Angliae Legum) found that:
‘…when authority and precedent is wanting, there is need of great consideration, before that any thing of novelty shall be established, and to provide that this be not against the law of the land: for I said, that the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament…
‘…also the law of England is divided into three parts, common law, statute law, and custom; but the King’s proclamation is none of them: also malum aut est malum in se, aut prohibitum, that which is against common law is malum in se, malum prohibitum is such an offence as is prohibited by Act of Parliament, and not by proclamation.
44                 Through the Bill of Rights, Parliament declared that the Crown may not:
‘…endeavour to subvert and extirpate… the Lawes and Liberties of this Kingdome… By Assumeing and Exerciseing a Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament…
‘By Levying Money for and to the Use of the Crowne by pretence of Prerogative for other time and in other manner then the same was granted by Parlyament…
‘And illegall and cruell Punishments inflicted.’
45                 As the Supreme Court emphasised in Miller:
Parliamentary sovereignty is a fundamental principle of the UK constitution, as was conclusively established in the statutes referred to in para 41 above. It was famously summarised by Professor Dicey as meaning that Parliament has “the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament; – op cit, p 38. The legislative power of the Crown is today exercisable only through Parliament. This power is initiated by the laying of a Bill containing a proposed law before Parliament, and the Bill can only become a statute if it is passed (often with amendments) by Parliament (which normally but not always means both Houses of Parliament) and is then formally assented to by HM The Queen. Thus, Parliament, or more precisely the Crown in Parliament, lays down the law through statutes – or primary legislation as it is also known – and not in any other way.
(Para 43)
And:
…The Crown’s administrative powers are now exercised by the executive, ie by ministers who are answerable to the UK Parliament. However, consistently with the principles established in the 17th century, the exercise of those powers must be compatible with legislation and the common law. Otherwise, ministers would be changing (or infringing) the law, which, as just explained, they cannot do. A classic statement of the position was given by Lord Parker of Waddington in The Zamora [1916] 2 AC 77, 90:
“The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogative involves any power to prescribe or alter the law administered in Courts of Common Law or Equity.”
(Para 45)
46                 The purported exercise of the Prerogative in extending A50 is, on one view, a more serious breach of the prohibition on the Crown to legislate than A50 Notification would have been.  While notification would have affected rights granted by EU law through the conduit of the 1972 Act, the extension of the A50 period – for a potentially unlimited period – continues the curtailment of Parliamentary sovereignty that would otherwise end with the withdrawal of the United Kingdom from the European Union.  It strikes at the heart of the abuse of the Crown’s power excoriated by Fortescue, Coke and the 1689 Convention Parliament.
47                 Parliament, by granting the Prime Minister the power to notify, authorised the removal of the liabilities, obligations and restrictions imposed by the Treaties two years after notification; and for domestic law to revert to the status quo ante the 1972 Act, thereby restoring its sovereignty that was (temporarily) curtailed by that Act.  Were there a Prerogative power to extend EU membership after the expiry of the initial A50 period, that power would require the continuance in domestic law of those liabilities, obligations and restrictions; and the continued curtailment of Parliamentary sovereignty.  But for that act, domestic law would by the operation of the Notification have ceased to incorporate changes to EU law.  This exercise of a purported Prerogative by the Prime Minister would thus, by executive fiat, cause legislation to be made, Parliament’s right to legislate to be restricted, criminal offences to be created and taxes to be raised.  The Crown has never had such a Prerogative; and its purported exercise of it is unlawful and void.
No Prerogative power save where sanctioned by statute
48                 At para 86 in Miller, the majority held that:
‘…the Royal Prerogative to make and unmake treaties, which operates wholly on the international plane, cannot be exercised in relation to the EU Treaties, at least in the absence of domestic sanction in appropriate statutory form. It follows that rather than the Secretary of State being able to rely on the absence in the 1972 Act of any exclusion of the Prerogative power to withdraw from the EU Treaties, the proper analysis is that, unless that Act [the ECA] positively created such a power in relation to those Treaties, it does not exist.’
49                 So, while the Crown may still exercise Prerogative powers in relation to the Treaties (as also acknowledged in para 95), it may do so only as authorised by statute.  At para 87, the Court considered whether the 1972 Act conferred a power of withdrawal and determined that it did not:
‘…Had the Bill which became the 1972 Act spelled out that ministers would be free to withdraw the United Kingdom from the EU Treaties, the implications of what Parliament was being asked to endorse would have been clear, and the courts would have so decided. But we must take the legislation as it is, and we cannot accept that, in Part I of the 1972 Act, Parliament “squarely confront[ed]” the notion that it was clothing ministers with the far-reaching and anomalous right to use a treaty-making power to remove an important source of domestic law and important domestic rights.
50                 Similarly, Parliament could in the 2017 Act have ‘spelled out’ the power of the Crown not simply to notify but to ask for and agree to extend the A50 period.  But it did not.  Thus, in the absence of such statutory authority – particularly given that the Crown could otherwise request and agree to extensions on repeated occasions and/or of unrestricted duration – the Crown has no such power.
Frustration of the purpose of the 2017 and 2018 Acts
51                 In Miller, the Supreme Court set out a digest of a further common law limitation on the Prerogative: namely that it may not frustrate the purpose of a statute or be exercised where a particular statutory scheme exists regulating the exercise of executive power:
[47] The Royal prerogative encompasses the residue of powers which remain vested in the Crown, and they are exercisable by ministers, provided that the exercise is consistent with Parliamentary legislation. In Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, 101, Lord Reid explained that the Royal prerogative is a source of power which is “only available for a case not covered by statute”. Professor HWR Wade summarised the position in his introduction to the first edition of what is now Wade and Forsyth on Administrative Law (1961), p 13:
“[T]he residual prerogative is now confined to such matters as summoning and dissolving Parliament, declaring war and peace, regulating the armed forces in some respects, governing certain colonial territories, making treaties (though as such they cannot affect the rights of subjects), and conferring honours. The one drastic internal power of an administrative kind is the power to intern enemy aliens in time of war.”
[48] Thus, consistently with Parliamentary sovereignty, a prerogative power however well-established may be curtailed or abrogated by statute. Indeed, as Professor Wade explained, most of the powers which made up the Royal prerogative have been curtailed or abrogated in this way. The statutory curtailment or abrogation may be by express words or, as has been more common, by necessary implication. It is inherent in its residual nature that a prerogative power will be displaced in a field which becomes occupied by a corresponding power conferred or regulated by statute. This is what happened in the two leading 20th century cases on the topic, Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 and Fire Brigades Union cited above. As Lord Parmoor explained in De Keyser at p 575, when discussing the prerogative power to take a subject’s property in time of war:
“The constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject.”
[49] In Burmah Oil cited above, at p 101, Lord Reid described prerogative powers as a “relic of a past age”, but that description should not be understood as implying that the Royal prerogative is either anomalous or anachronistic. There are important areas of governmental activity which, today as in the past, are essential to the effective operation of the state and which are not covered, or at least not completely covered, by statute. Some of them, such as the conduct of diplomacy and war, are by their very nature at least normally best reserved to ministers just as much in modern times as in the past, as indeed Lord Reid himself recognised in Burmah Oil at p 100.
[50] Consistently with paras 44 to 46, and the passage quoted from Professor Wade in para 47 above, it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law. As Lord Hoffmann observed in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, para 44, “since the 17th century the prerogative has not empowered the Crown to change English common or statute law”. This is, of course, just as true in relation to Scottish, Welsh or Northern Irish law. Exercise of ministers’ prerogative powers must therefore be consistent both with the common law as laid down by the courts and with statutes as enacted by Parliament.
[51] Further, ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation. Thus, ministers could not exercise prerogative powers at the international level to revoke the designation of Laker Airways under an aviation treaty as that would have rendered a licence granted under a statute useless: Laker Airways Ltd v Department of Trade [1977] QB 643 – see especially at pp 718-719 and 728 per Roskill LJ and Lawton LJ respectively. And in Fire Brigades Union cited above, at pp 551-552, Lord Browne-Wilkinson concluded that ministers could not exercise the prerogative power to set up a scheme of compensation for criminal injuries in such a way as to make a statutory scheme redundant, even though the statute in question was not yet in force. And, as already mentioned in para 35 above, he also stated that it was inappropriate for ministers to base their actions (or to invite the court to make any decision) on the basis of an anticipated repeal of a statutory provision as that would involve ministers (or the court) pre-empting Parliament’s decision whether to enact that repeal.
52                 The Court distinguished cases where the exercise of the Prerogative changed the status of ‘a person, thing or activity’ (for example by declaration of war, which was permissible) from cases where its exercise ‘changed the law’ (para 53).
53                 The 2017 Act did not merely give the Prime Minister a power to notify.  The long title of the Act was:
‘An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU’
(Emphasis added)
54                 Given that it was Parliament’s intention that the UK would withdraw from the EU, the Prime Minister had a discretion when, not whether, to notify.  But whether or not the exercise of the power was discretionary, Parliament authorised an act which would, if exercised, lead inexorably to the consequences on domestic law outlined at para 24 above – the end of the curtailment by EU membership on Parliamentary sovereignty and the end of the EU’s powers to imposed legislation, criminal offences and demands of revenue on the UK.  Parliament must be assumed to have legislated knowing that the consequence was that EU membership would end (absent an extension) not later than two years after notification, particularly given the express statutory reference to A50 in s 1 of the Act.
55                 It has been submitted that the absence of a statutory power – in the 2017 Act or elsewhere – is sufficient for the court to determine that the Prime Minister’s purported agreement to the extension was void.  Alternatively, such an act would frustrate the purpose and scheme of the 2017 Act.  The power given by Parliament to the Prime Minister was limited to notification.  Those powers could have extended to agreeing to an extension ‘on behalf of the [United Kingdom]’.  But they did not.
56                 The further means by which the date of the withdrawal of the UK from the EU could have been different from two years after notification was by the ratification of a withdrawal agreement by the UK and the EU.  Yet the absence of reference to this in the 2017 Act is of no object, as any such withdrawal agreement could only have affected domestic law through further primary legislation (JH Rayner (Mincing Lane) v Department of Trade and Industry, supra).  Such an agreement would otherwise only affect the UK’s international obligations; and its ratification would be through the Crown’s classic Prerogative of the conduct of foreign relations, in contradistinction to an extension of the A50 period, which would affect domestic law.
57                 Finally, Parliament has since provided a statutory scheme, in the 2018 Act, for the UK’s withdrawal from the EU.  While this scheme is intended to preserve the continuity of law after withdrawal (and while much of it is not in force) it was passed with the purpose of putting that withdrawal into effect in domestic law. 
58                 As has been set out, the Act does not merely define exit day but allows that date to be amended after (but only after) the A50 period has been extended.  Yet, while Parliament could have provided for an executive power to agree to such an extension, it did not do so.  The fact that ‘exit date’ could be extended cannot presuppose that a power already exists for HM Government to agree to extend the A50 period.  Such an executive act would be wholly independent of the 2018 Act.
59                 The lawfulness of any power to agree to an extension must be seen in the context of scheme of A50, which applies no limit to the duration of an extension or to the number of times it may be requested.  It either exists or it does not.  It is impossible – and undesirable – to attempt to draw a distinction between short extensions (such as those purportedly agreed by the Prime Minister) and longer ones; or between a first agreement to extend and subsequent agreements.  The power either exists or it doesn’t; and each time it is exercised it has the same effect on domestic law – continuing the curtailment of Parliamentary sovereignty and the power of the EU to legislate, create offences and raise funds.  Such a power would thereby frustrate the 2018 as much as the 2017 Act and any attempt to request or agree to an extension would, accordingly, be void.    
EFFECT OF LACK OF POWER TO EXTEND
Under EU and international law
60                 If the Prime Minister acted unlawfully by purporting to exercise Prerogative powers in seeking and agreeing to an extension of the A50 period, that act was void not merely as a matter of domestic law but as a matter of EU and international law.
61                 It is an important feature of this matter that the unlawfulness of the powers purportedly exercised by the Prime Minister on the domestic plane will have no effect in domestic law if that exercise nevertheless binds the United Kingdom as a matter of EU law.  The 1972 Act continues to be a conduit for EU law for as long as the Treaties apply to the UK; and the powers of HM Government and Parliament to make the Exit Day Regulations are dependent upon the A50 period ending on a different day to 29.3.2019.  Thus, unless the unlawfulness of the Prime Minister’s actions voids them under EU law, they will still have domestic law consequences.  For reasons developed below, it is submitted that acts by the Prime Minister within the EU bind the UK only where they are conducted in compliance with domestic law.
62                 The unconstitutional[7]and unattractive consequences of an unlawful act of a head of government potentially binding a Member State are themselves an important consideration in support of that contention.  Three other submissions are made.
63                 First, the scheme of A50 requires that all acts of the government of a withdrawing Member State are void unless done in accordance with the constitutional arrangements of the member state.  While this is only expressly required of notification (in A50.1), the CJEU found in Wightmanthat notification may only be revoked in accordance with the constitutional requirements of a departing Member State (paras 37, 58, 66 and 67).  The importance of the constitutionality of a Member State’s actions under A50 reflected the weight put upon the democratic process of those states by the EU (see para 67): and there can be little less democratic than an executive act, possibly exercised continuously, binding the UK to continued membership of the EU for indeterminate periods.
64                 As has been submitted, the consequences of extension are considerable both for the EU and for the Member State concerned: for the period of the extension, they are identical to the consequences of revocation (and, while the CJEU in Wightman cautioned against the revocation of notification being used for tactical purposes prior to a renewed notification, there is no bar in EU law to a future notification after revocation).  For the Member State, the obligations and liabilities summarised in para 24 above remain.  For the EU, the Member State’s representation in all EU institutions remains, thereby diluting that of other Member States and providing that Member State with a veto over some decisions of the Council of the European Union and the European Council.
65                 Secondly, the EU is a Union of States and Peoples founded upon democratic principles.  Relations between governments within it are dependent upon the lawfulness of the acts of those governments under their domestic law, respect for which is inherent within the Treaties.  Inter-governmental relations affecting the notification of withdrawal and extension of the A50 period are not the conduct of international relations between treaty making foreign powers nor even (save in respect of the negotiation of a withdrawal agreement) a treaty making process between current members of the EU.  The application for and agreement to an extension is to be done between the UK and the Council ‘with the agreement of the Member State’.  The Member State is not merely its government and its government may not act on its behalf save under its lawful authority.  It would be inapt to treat the acts of governments of member states within such bodies as being comparable to the ‘apparent authority’ of governments when exercising treaty making powers on the international plane.[8]  
66                 Thirdly, precedent in international law supports the Claimant’s contention that unconstitutional acts of a head of government (in the context of the UK, acts unlawful in public law terms) cannot bind a member state of a supranational organisation.  In his opinion preceding the CJEU judgment in Wightman (ECLI:EU:C:2018:978), Advocate General Campes Sanchez Bordona gave an example of the unconstitutional act of a head of government within a supranational body being void as a matter of international law:
69.      On 19 August 2009, the Government of Panama notified (43) its withdrawal from the Treaty Constituting the Central American Parliament and Other Political Bodies (‘Parlacen’), (44) citing in support of its position Article 54(b) of the VCLT. Faced with the refusal of the members of Parlacen, the Government of Panama requested the Panamanian National Assembly to approve Law 78, of 11 December 2011, which echoed the wording of that notification and proposed the annulment of the Panamanian instruments which ratified that Treaty. However, the Corte Suprema de Justicia de Panamá (Supreme Court of Justice, Panama) declared that law unconstitutional, in that it infringed Article 4 of the Panamanian Constitution (‘The Republic of Panama abides by the rules of International Law’), since the Parlacen Treaty did not include a clause expressly providing for withdrawal and that withdrawal was not feasible under Articles 54 and 56 of the VCLT. (45) As a result of that judgment, Panama’s withdrawal notification was revoked and that country resumed participating in Parlacen.[9]
67                 It was not suggested that Panama needed to be re-admitted to Parlacen: its notification of withdrawal was void ab initio in view of its government acting without constitutional authority.  This principle applies, if anything, more to the relations between the UK and the EU.  The EU is not merely an organisation of states but of peoples.  It is a highly integrated supranational organisation with a directly elected law making assembly, whose laws override national laws and whose Court of Justice is the ultimate arbiter of that law.  Where exercising powers at an inter-governmental level, governments may only act in accordance within their constitutional authority. 
68                 Consequently, in the event the Crown had no power to agree, the extension cannot have been made ‘with the agreement of the Member State concerned’ and the Treaties ceased to apply to the UK on 29.3.2019.
In domestic law
69                 Parliament only had the power to make the Exit Day Regulations if, as a matter of international law, the date on which the Treaties ‘are to cease to apply… is different’ to 29.3.2019 (s 20 (3) of the 2018 Act).  If the extension purportedly agreed by the Prime Minister before those Regulations were made (on 28.3.2019) was void, the date on which the Treaties would cease to apply was not different (as a matter of international law), Parliament would have had no power to make the Regulations and they were void.
70                 The consequential effect on domestic law has been set out in paras 24 above.  The limited parts of the 2018 Act in force would have come into effect on ‘exit day’ (11 pm on 29.3.2019) and the 1972 Act, while not repealed (s 1 of the 2018 Act not being in force) would cease to be a conduit for EU law, the Treaties having ceased to apply to the UK.
71                 Because HM Government and Parliament have not (through secondary legislation) put the remaining important provisions of the 2018 Act into force, there would thereby be some uncertainty as to the status of EU Regulations that previously had effect under the 1972 Act.  It is suggested that Directives incorporated by secondary legislation would continue to have effect given that such legislation was in accordance with the 1972 Act then in force.  Regulations that came into effect while the Treaties applied to the UK might continue to remain law under the 1972 Act, which remains in force.  That Act provided that Regulations had automatic effect while the Treaties applied to the UK and did not provide that their continued validity (in domestic law) was dependent upon continued EU membership.  Alternatively, Parliament could pass primary legislation to put the 2018 Act provisions into force retrospectively.
72                 However, none of the above consequences can or should stop the Court from determining this case under the correct legal principles.  If the Prime Minister’s agreement to the extension of the A50 period was void, it was void whatever disruptive consequences that may have on UK law or otherwise.  The Courts must  enforce the rule of law, whatever the consequences.
STANDING
73                 The test for standing in judicial review proceedings is not high.  In Walton v Scottish Ministers ([2012] UKSC 44) the Supreme Court quoted with approval this finding of Lord Denning in Attorney-General of the Gambia v N’Jie ([1961] AC 617, at 634):
“The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.”
74                 Particularly pertinent to this case is the judgment of the Administrative Court in R (on the application of Save our Surgery Ltd) v Joint Committee of Primary Care Trusts ([2013] EWHC 439 (Admin), ‘Save our Surgery’).  There, Nicola Davis J found that a claimant had sufficient interest where it represented:
“…many individuals who have contributed financially in order to bring these proceedings. It includes individuals who have been or could be directly affected by the closure of the Leeds Unit and clinicians who work within the unit. Incorporation, following the intervention of the Charity Commission, was a proper means of allowing the interests of a substantial number of such persons to pursue this litigation”
75                 In making this decision, the Court took into account that:
The majority, if not all of the individuals who have contributed to the fighting fund, together with the Directors of the claimant, would have a direct sufficient interest in their own right had they brought the claim as individuals…  The adverse costs in litigation are such that no citizen of ordinary means would prudently contemplate bringing this litigation as an individual. Incorporation was and is the proper means of allowing the interests of a substantial number of persons who consider the defendant’s decision to be unfair and unlawful to be jointly represented…
76                 This case is being brought by a Political Party registered to participate in regulated democratic elections.  In the 2014 EP elections it received around 125,000 votes.[10]  Moreover, this litigation is being crowd-funded and it is reasonable to suppose that a large proportion of its funders are citizens or residents of the UK with an interest in its membership of the EU.  As in Save our Surgery, most if not all of the Claimant’s members would have standing were any one of them to pursue a claim individually; the costs and costs risks of such proceedings would be prohibitive for any of them individually; and it is reasonable for a corporation to litigate such proceedings.  Indeed, there is if anything more reason for the Claimant to have standing as it has been a registered political party since 1999, twenty years before this challenge.
POSTSCRIPT
77                 Given the initial requirement of permission, the Claimants rely with gratitude on the opinions and comments expressed in the public domain by the Rt Hon Sir Richard Aikens (a former lord justice of appeal speaking extra-judicially), in support of the contention that this claim is at least arguable:
(1)                In an opinion article for ‘Briefings for Brexit’ published on 25.3.2019, before the extension came into effect; and
(2)                In comments reported on 3.4.2019, after the start of the purported extension, in which he stated that “the way in which the extension was organised [was] ‘highly unsatisfactory’ and ‘arguably illegal’” and that
‘If the argument… is correct, then it would mean that, under UK law, we left the EU last Friday at 11pm. The Treaties would no longer be binding and the UK would no longer be subject to EU law.’
‘The argument obviously becomes much more important if there is any attempt at a longer “extension”, but, logically, if the argument is correct, then any attempt at a further extension would be a legal nonsense as the UK would already be “out”.’[11]
78                 Sir Richard’s article is attached as an annex to these submissions.
CONCLUSION
79                 The attempt by the Prime Minister to exercise a prerogative power to extend EU membership continued was an attempt to continue, by executive fiat, the curtailment of Parliamentary sovereignty and the power of the EU to legislate, make criminal offences and raise funds.  No such power exists, being contrary to fundamental principles of the common law, and her agreement to the extension was, accordingly, void.
80                 Alternatively, the exercise of such a power would have frustrated the 2017 and 2018 Act and was void.
81                 In consequence, the United Kingdom’s membership of the EU ended on 29.3.2019, since when the Treaties have ceased to apply to domestic law.
8th April, 2019
FRANCIS HOAR
Field Court Chambers,
5 Field Court,
Gray’s Inn,
London WC1R 5EF

[1]It is unclear whether the Republic of Hungary exercised its vote, although it did not veto the decision to accept the Prime Minister’s request, purportedly on behalf of the United Kingdom, or the offer to extend the A50 period to the two alternative dates.
[2]Required wherever legislation may curtail Her Majesty’s Prerogative.
[3] Those in the three jurisdictions of England and Wales, Scotland and Northern Ireland.
[4]An argument has been raised that the draft SI could be put before both Houses of Parliament for affirmation before agreement was made to extend at the international level and the SI made by the Minister only after the date on which the Treaties ‘are’ to cease to apply was different to 29.3.2019.  This argument is not made or developed here and would fall to be considered only as an alternative to the Claimant’s position: which is that only primary legislation could create a statutory power for HM Government to agree to an extension ‘on behalf of the United Kingdom’.
[5]I am indebted to Robert Craig, tutor in law at Durham University and the LSE, for his analysis of the statutory context, albeit that he comes to a different conclusion on the possible exercise of the Prerogative: R. Craig, ‘Can the Government Use the Royal Prerogative to Extend Article 50?’, U.K. Const. L. Blog (9th Jan. 2018): https://ukconstitutionallaw.org/2019/01/09/robert-craig-can-the-government-use-the-royal-Prerogative-to-extend-article-50/
[6] See paras 41 and 44
[7] When these submissions refer to ‘unconstitutional’ in the UK context, what is meant are acts of a constitutional nature that are unlawful on statutory and/or common law grounds and may thereby be voided by judicial review.  Excluded from the term (as used here) are breaches of convention that might be described as ‘unconstitutional’ but are non-justiciable.
[8]Where a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance: Vienna Convention on the Law of Treaties art 46 para 1
[9]The Advocate General includes a citation to the following article, which is in the Spanish language: http://www.parlacen.int/Actualidad/Actualidad/tabid/146/EntryId/369/Reintegro-de-Panama-al-PARLACEN.aspx
[10] https://www.bbc.co.uk/news/events/vote2014/eu-uk-results
[11] https://www.dailymail.co.uk/news/article-6882583/Former-appeal-judge-says-legality-Brexit-extension-tested-court.html

English Democrats bring the Case to get a Declaration that the UK has left the EU as of the 29th March 2019

This is our only chance to complete what we voted for in the EU Referendum!

We are serving the legal papers required to bring this case but we really need all the support that Leave supporters can give us to make sure that we can match the expensive legal muscle whom the Government and Remainers will instruct against us! 

Please help as generously as you can! 

There is a donate button on our website >>> EnglishDemocrats.Party

Here are the draft Grounds:-

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT
BETWEEN
THE QUEEN
ON THE APPLICATION OF THE ENGLISH DEMOCRATS
(REG. NO. 6132268)
Applicant
-and-
THE PRIME MINISTER (1)
THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION (2)
Respondents
________________________________
GROUNDS OF THE APPLICATION
_________________________________
1.     It is submitted that the United Kingdom of Great Britain and Northern Ireland has left the European Union as of the 29thMarch 2019 after the expiry of its two year Notice to Leave dated 29thMarch 2017.
2.     Much of the relevant law has been explored and ruled upon by this Honourable Court and by the Court of Appeal and by the Supreme Court in the case of R (on the application of Miller and another) – v – Secretary of State for Exiting the European Union [2017] UKSC5.  Consequently Parliament enacted the European Union (Notification of Withdrawal) Act 2017. 
3.     The United Kingdom of Great Britain and Northern Ireland joined the European Union pursuant to Treaty in 1972 and subsequently the European Union Act 1972 was enacted to give domestic legal force to the Treaty obligations to the European Union.
4.     The current overarching constitution of the European Union was reformed under the Lisbon Treaty which was brought into direct legal force in the United Kingdom pursuant to the European Union (Amendment) Act 2008.
5.     Article 50 of the Lisbon Treaty  reads as follows:-
“Article 50 – Treaty on European Union (TEU)
1.     Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2.     A Member State which decides to withdraw shall notify the European Council of its intention.  In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.  That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union.  It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3.     The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4.     For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3(b) of the Treaty on the Functioning of the European Union.
5.     If a State which has withdrawn from the Union asked to rejoin, its request shall be subject to the procedure referred to in Article 49.”
                           
6.     On the 23rd June 2016 the voters of the United Kingdom, by a majority, and the voters of England by a larger majority,  voted, in the largest democratic mandate in the United Kingdom’s history, to leave the European Union. 
7.     In accordance with the United Kingdom’s “Constitutional Requirements” Parliament enacted the European Union (Notification of Withdrawal) Act 2017.  The Preamble to that Act states that it is:- “An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU” 
The Act provides:-
“1. Power to notify withdrawal from the EU
(1)  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.”
8.     Pursuant to the statutory power granted by the European Withdrawal Act 2017 the Prime Minister duly served the Notice on 29th March 2017.  That Notice expired on the 29th March 2019. 
9.     Accordingly it is submitted that as of the scintilla temporis after the expiry of the said notice on the 29thMarch 2019, the United Kingdom of Great Britain and Northern Ireland has left the European Union.
10.In the European Union Withdrawal Act 2018 Parliament further enacted a transitional scheme whereby it proposed to transpose all EU law into a direct effect in the UK jurisdictions of Northern Ireland, Scotland and England and Wales.  Much of that Act has not been brought into force.  The Act mis-describes its implementation date as “exit day”.  This is something of a misnomer since under the true construction of this Act it has no role, either purported or implicit, in determining the date of departure of the UK leaving the European Union.  Within the meaning of the Act, “exit date” is merely the implementation date for the Act’s transactional arrangements.
11.The Applicant is aware that there has been purported ministerial Regulation under the 2018 Act which may have been approved by resolution in both Houses.  However even if it has, it is submitted that such a Regulation cannot of itself be in any way definitive of the UK’s actual departure from the European Union.  The relevant wording of the Act makes this clear:- 
“European Union (Withdrawal) Act 2018
An act to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.
[26th June 2018]
1 Repeal of the European Communities Act 1972
The European Communities Act 1972 is repealed on exit day.
2 Saving for EU-derived domestic legislation
(1) EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.
20 Interpretation
(1) In this Act—
“exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2) to (5));
(2) In this Act references to before, after or on exit day, or to beginning with exit day, are to be read as references to before, after or at 11.00 p.m. on 29 March 2019 or (as the case may be) to beginning with 11.00 p.m. on that day.
(3) Subsection (4) applies if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1).
(4) A Minister of the Crown may by regulations—
(a) amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and
(b) amend subsection (2) in consequence of any such amendment.”
12.Despite the express wording of the European Union (Notification f Withdrawal) Act 2017, expressly only empowering the Prime Minister to give Notice to withdraw the United Kingdom from the EU, the Prime Minister has purported to request an extension of the Article 50 date for departure and subsequently purported to agree an extension to the date of departure. 
13.It is submitted, in accordance with long and high authority of legal precedents and also recently and comprehensively in R (on the application of Miller and another) – v – Secretary of State for Exiting the European Union [2017] UKSC5 that, statute fully displaces any residual prerogative powers. 
14.In the premises the only power that the Prime Minister had, as regards Article 50, was the service of the Notice withdrawing the United Kingdom from the EU and giving two years notice.  That power was functus officio on the 29thMarch 2017. Accordingly, her purported request for an extension of the date of departure and the Government’s purported agreement to such an extension is and was unlawful and is and was null and void.
15.In the premises the Applicant seeks a Declaration from this Honourable Court that the United Kingdom of Great Britain and Northern Ireland left the European Union upon the expiry of the Article 50 Notice on the 29th March 2019.
Statement of Fact
I believe that the facts in these Grounds are true.
Signed …………………………………           Dated ……………………..
            Robin Charles William Tilbrook

BREXIT – BEFUDDLED AND BE-JUDGED!


BREXIT – BEFUDDLED AND BE-JUDGED!


The High Court of Justice of England and Wales has made a preliminary and sensational ruling on how Brexit must be approached. The case, in addition to being politically significant, is of course legally and constitutionally significant as the High Court did pull out all the stops knowing that that was the case, with no less than three of the most senior judges in the England and Wales jurisdiction sitting on the case; the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sales. The case itself is :- The Queen on the application of (1) Gina Miller & (2) Deir Tozetti Dos Santos – and – The Secretary of State for Exiting the EU. It can be found on the court website here:- https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

The case is worth reading if you are at all interested in the law of Constitution. 

There is however a potted summary here for those less interested in legal details >>>

https://www.judiciary.gov.uk/wp-content/uploads/2016/11/summary-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

Here is the text of the Summary:-

“R (Miller) v Secretary of State for Exiting the European Union

Summary of the judgment of the Divisional Court

References in square brackets are to paragraphs in the judgment.

The Question

1. The issue before the court is whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament. This is a pure question of law. The court is not concerned with and does not express any view about the merits of leaving the European Union: that is a political issue.

2. It is accepted by all sides that this legal question is properly before the court and justiciable: under the UK constitution, it is one for the court to decide [5]. It turns on the extent of the Crown’s powers under its prerogative [explained at 24-29]. The Government accepts that neither the European Union Referendum Act 2015 nor any other Act of Parliament confers on it statutory authority (as distinct from the Crown’s prerogative power) to give notice under Article 50 [67-72, 76 and 105-108].

3. On 1 January 1973 the United Kingdom joined what were then the European Communities, including the European Economic Community. Parliament passed the European Communities Act 1973 (1972 Act) to allow that to happen since it was a condition of membership that Community law should be given effect in the domestic law of the United Kingdom and primary legislation was required to achieve this [1 and 36-54]. The European Communities have now become the European Union.

4. Pursuant to the European Union Referendum Act 2015 a referendum was held on 23 June 2016 on the question whether the United Kingdom should leave or remain in the European Union. The answer given was that the UK should leave [2].

 
5. The process for withdrawal is governed by Article 50 of the Treaty on European Union, which states that once a Member State gives notice to withdraw there is a two-year period in which to negotiate a withdrawal agreement. If no agreement is reached in this time then, subject only to agreement to an extension of time with the European Council acting unanimously, the EU Treaties shall cease to apply to that State. The Government accepts that a notice under Article 50 cannot be withdrawn once it has been given. It also accepts that Article 50 does not allow a conditional notice to be given: a notice cannot be qualified by stating that Parliament is required to approve any withdrawal agreement made in the course of Article 50 negotiations [9-17].

6. Therefore, once notice is given under Article 50, some rights under EU law as incorporated into domestic law by the 1972 Act would inevitably be lost once the Article 50 withdrawal process is completed [57-66].


The Constitutional principles

7. The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament it has been established for hundreds of years that the Crown – i.e. the Government of the day – cannot by exercise of prerogative powers override legislation enacted by Parliament. This principle is of critical importance and sets the context for the general rule on which the Government seeks to rely – that normally the conduct of international relations and the making and unmaking of treaties are taken to be matters falling within the scope of the Crown’s prerogative powers. That general rule exists precisely because the exercise of such prerogative powers has not effect on domestic law, including as laid down by Parliament in legislation [18-36].

8. In the present case, however, the Government accepts, and indeed positively contends, that if notice is given under Article 50 it will inevitably have the effect of changing domestic law. Those elements of EU law which Parliament has made part of domestic law by enactment of the 1972 Act will in due course cease to have effect [76-80].

9. The central contention of the Government in the present case is that Parliament must be taken to have intended when it enacted the 1972 Act that the Crown would retain its prerogative power to effect a withdrawal from the Community Treaties (now the EU Treaties), and thereby intended that the Crown should have the power to choose whether EU law should continue to have effect in the domestic law of the UK or not [76-81].

Conclusion

10. The Court does not accept the argument put forward by the Government. There is nothing in the text of the 1972 Act to support it. In the judgment of the Court the argument is contrary both to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers [82-94, 97-104]. The Court expressly accepts the principal argument of the claimants [95-96].

11. For the reasons set out in the judgment, we decide that the Government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.”

Following the release of this Judgment there has been an attack on the political and demographic origins of the three Judges, all three of whom are the product of Labour’s Lord Derry Irvine “Reforms” to the selection and promotion of the judiciary. Lord Irvine expressly said these had been engineered to “ensure that no-one with reactionary views could be appointed or promoted within the judiciary”. This expressed objective has clearly been achieved with these three judges. The

Lord Chief Justice background as an active Europhile was amply exposed in the Daily Mail article here >>> http://www.dailymail.co.uk/news/article-3903436/Enemies-people-Fury-touch-judges-defied-17-4m-Brexit-voters-trigger-constitutional-crisis.html

In the original version of the article, the Daily Mail also reported the Master of the Rolls, Sir Terence Etherton as being the first “openly gay” senior Judge and also as having married his boyfriend in “a traditional Jewish marriage ceremony”.

Lord Justice Sales was exposed as being one of Lord Irvine’s personal protégées.

So it appears that we can be reasonably confident of the personal views and political prejudices of all three judges!

From a lawyer’s point of view there was therefore, particularly with the Lord Chief Justice, good grounds for applying the approach which was adopted by the House of Lords in the Pinochet case to Lord Hoffman who had ruled based on his own political prejudices. The case can be found here>>> http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990115/pino01.htm

The most extraordinary aspect of this fiasco is that any reasonably competent country solicitor would have advised the Government that where a challenge was being made to legal rights to take action (in this case the Government giving notice under Article 50 of the Lisbon Treaty) the obvious thing to do is to get on with it and give the Notice.

This of course would have made it pointless continuing with the court case. The Notice would already have been accepted by the European Union and the process of leaving the EU would therefore be underway regardless of what any court had to say. In such cases the courts are very unwilling to give rulings on what are described as “moot points”. It follows that the fiasco is a product of delay and incompetence within the May Government.

Turning back to the Judgment, it is a Judgment that is more dubious on previous legal authority than it sounds as it is phrased in what has been described as “muscular” language. I would also respectfully suggest it seems to be over certain of its legal position. This is however partly a result of the incompetence of the Attorney General in agreeing that the case was “justiciable”.

As an example of arguments that show that the Judgment is more dubious than it seems, see here for an academic analysis >>> https://publiclawforeveryone.com/2016/11/04/the-high-courts-judgment-in-miller-a-brief-comment/

Here is the text of the article:-

“The High Court’s judgment in Miller: A brief comment

The following short comment on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) was published on the Judicial Power Project’s website and is reproduced here with permission. The piece is part of a collection of short commentaries published by the Judicial Power Project; the full collection can be accessed here. I will be publishing a more detailed piece on Miller in due course.

Some of today’s press coverage of the judgment in Miller, accusing judges of acting undemocratically, is deplorable. It is entirely right and proper that the Court should determine the legal extent of executive authority. That is an axiomatic judicial function in a democracy founded on the rule of law. But what of the content of the decision?

The judgment is striking in its muscularity. The Court considered the Government case to be so weak that it judged it untenable before even considering the claimant’s arguments in detail. The Government’s case, said the Court, was ‘flawed’ at a ‘basic level’. Reading the judgment, one might be forgiven for thinking that the Government had advanced a heterodox argument of outlandish proportions. In fact, it was simply asserting that it could use a prerogative power to begin negotiations on the international plane. None of this is to deny the subtlety of the issues to which that contention gives rise concerning the relationship between EU and domestic law, and the role played by the European Communities Act 1972 in mediating that relationship. But as John Finnis has shown, the Government’s position is far from unarguable.

Once the Divisional Court had accepted — contrary to Finnis’s view — that EU law rights are to be considered domestic statutory rights enacted by Parliament, its focus inevitably shifted to the question whether the ECA was to be read as having displaced the Government’s ability to use the prerogative to begin the Article 50 process. In concluding that the ECA had indeed produced such an effect, the Court engaged in a highly creative process of statutory interpretation that involved relying upon the ECA’s status as a ‘constitutional statute’; treating the Act’s ‘constitutional status’ as evidence of Parliament’s intention — a view that is in tension with Laws LJ’s analysis in Thoburn; invoking certain ‘background constitutional principles’ that are relevant to statutory interpretation; and asserting that those principles are particularly relevant to the construction of constitutional statutes.

My point, in this short comment, is not to assess the correctness of the court’s conclusion on this matter. Rather, it is to observe that that conclusion — and the reasoning on which it is based — is highly contestable. Perhaps, therefore, the most surprising aspect of Miller is that the confident certainty of the terms in which the judgment is framed obscures almost entirely the complexity and contestability of the questions to which it gives rise, concerning the selection, content and interaction of the constitutional principles that form the prism through which the ECA falls to be examined.”

The core of the Judgment is that the central institution within the Constitution is the Crown in Parliament. Here is a section of the Judgment well worth quoting and bearing in mind.

“ The principles of constitutional law: the sovereignty of Parliament and the prerogative powers of the Crown

The United Kingdom constitution
 
18. The United Kingdom does not have a constitution to be found entirely in a written document. This does not mean there is an absence of a constitution or constitutional law. On the contrary, the United Kingdom has its own form of constitutional law, as recognised in each of the jurisdictions of the four constituent nations. Some of it is written, in the form of statutes which have particular constitutional importance (as we explain at paragraphs 43-44). Some of it is reflected in fundamental rules of law recognised by both Parliament and the courts. There are established and well-recognised legal rules which govern the exercise of public power and which distribute decision-making authority between different entities in the state and define the extent of their respective powers. The United Kingdom is a constitutional democracy framed by legal rules and subject to the rule of law. The courts have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws.
 
19. In these proceedings, this court is called upon to apply the constitutional law of the United Kingdom to determine whether the Crown has prerogative powers to give notice under Article 50 to trigger the process for withdrawal from the European Union. The law we were taken to was primarily the law of England and Wales, with some reference to the position in the other jurisdictions in the United Kingdom, Scotland and Northern Ireland. Although this court only has jurisdiction to apply the law of England and Wales, we note that no-one in these proceedings has suggested that such parts of constitutional law in Scotland and Northern Ireland in relation to the interaction between statute and the Crown’s prerogative powers as are relevant to determine the outcome in this case are any different from the law of England and Wales on that topic. Accordingly, for ease of reference and in view of the general constitutional importance of this case we will refer to UK constitutional law.
 
The sovereignty of the United Kingdom Parliament
 
20. It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme (we will use the familiar shorthand and refer simply to Parliament). Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this.
 
21. But even then Parliament remains sovereign and supreme, and has continuing power to remove the authority given to other law by earlier primary legislation. Put shortly, Parliament has power to repeal the ECA 1972 if it wishes.
 
22. In what is still the leading account, An Introduction to the Law of the Constitution by the constitutional jurist Professor A.V. Dicey, he explains that the principle of Parliamentary sovereignty means that Parliament has:

“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament.”

(p. 38 of the 8th edition, 1915, the last edition by Dicey himself; and see chapter 1 generally).

Amongst other things, this has the corollary that it cannot be said that a law is invalid as being opposed to the opinion of the electorate, since as a matter of law:

“The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors.” (ibid. pp. 57 and 72).
 
23. The principle of Parliamentary sovereignty has been recognised many times in leading cases of the highest authority. Since the principle is common ground in these proceedings it is only necessary to cite the speech of Lord Bingham of Cornhill in R (Jackson) v Attorney General[2005] UKHL 56; [2006] 1 AC 262 at para. [9]:

“The bedrock of the British constitution is … the supremacy of the Crown in Parliament …”.
 
 The Crown’s prerogative powers
 
24. The extent of the powers of the Crown under its prerogative (often called the royal prerogative) are delineated by UK constitutional law. These prerogative powers constitute the residue of legal authority left in the hands of the Crown. As Lord Reid said in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, at 101:

“The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute.”
 
25. An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers. But the constitutional limits on the prerogative powers of the Crown are more extensive than this. The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised. Outside those boundaries the Crown has no power to alter the law of the land, whether it be common law or contained in legislation.
 
26. This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It has its roots well before the war between the Crown and Parliament in the seventeenth century but was decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognised ever since.
 
27. Sir Edward Coke reports the considered view of himself and the senior judges of the time in The Case of Proclamations (1610) 12 Co. Rep. 74, that:

“the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”

and that:

“the King hath no prerogative, but that which the law of the land allows him.”
 
28. The position was confirmed in the first two parts of section 1 of the Bill of Rights 1688:

“Suspending power – That the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall.

Late dispensing power – That the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath beene assumed and exercised of late is illegall.”
 
29. The legal position was summarised by the Privy Council in The Zamora [1916] 2 AC 77, at 90:

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

These principles are not only well settled but are also common ground. It is therefore not necessary to explain them further.”

This approach is, to be fair, consistent with the way our Constitution Law has developed. I have previously commented that democracy is very much a bolt-on to the oligarchic principles of the British Constitution. No clearer statement of that could really be sought from any legal Judgment.

In a genuine democracy it is the “People” and the “Nation” which is sovereign, not some constitutional construct like the “Crown in Parliament”. In a genuine democracy the “Crown in Parliament” would be seen to be the delegates of the People not their masters. The People within a democracy are “citizens” not “subjects”. The United States Constitution has a greater aspiration towards being democratic than our constitution which is why there is reference to “we the People…” and court cases are brought in the name of “the People” against the accused rather than as here “the Crown” against the accused.

So what we have in this case is a strongly worded logical Judgment based on the traditional unpinning of the Constitution arising out of the English Bill of Rights and 1689 Glorious Revolution, not on the theory of democracy or any ideas of nationhood.

It looks to me from the Judgment as if the Government may also have failed to argue a distinction between directly applicable EU rights that arise through the EU system and are directly applied as a result of the European Communities Act and have agreed that those rights are the same in essence as rights arising from either Common Law or Statute. Those are the rights which previous cases have upheld as being outside the power of the Royal prerogative to change.

That being the case it may well be that the Supreme Court next month will rule to uphold this Judgment. If that is the case then be in no doubt that the giving of notice under Article 50 will require primary legislation to go through Parliament. That is an Act to be passed by both the House of Commons and the House of Lords and to be given Royal Assent and to be implemented by an Order from the Privy Council.

Such legislation to become an Act of Parliament will be subject to all sorts of quibbles and delaying tactics by the Remainers who form a huge majority of Members of Parliament and Peers. It follows that we look like we are entering a major constitutional crisis at least equivalent to that of Lloyd George’s budget in 1911, which, combined with the Irish Question, got us perilously close to civil war with the then Leader of the Conservative Party involved in smuggling arms!

There is also the tempting question to Tories of whether the Conservatives can get electoral advantage by wrong-footing Labour into outright opposition to such a bill and then being able to get a two thirds majority in the House of Commons for a snap election under the Fixed Terms Parliament Act!

As a postscript would the Conservatives campaigning for a mandate to trigger the Article 50 notice be temptingly likely to achieve Theresa May’s aim of destroying UKIP?

It will also be interesting to see if Labour can actually survive as a Party outside of the metropolitan areas on a ticket of opposing Brexit when a vast majority of their voters in much of the rest of England voted to Leave in June’s EU Referendum!

BREXIT – THE EU AND UK LEGAL AND CONSTITUTIONAL PROCEDURES


I was recently asked to do an article for the Solicitors Journal which is a highly respected Legal magazine. The brief was to set out my views on Article 50 and on the situation. Also as George Osborne had just said the UK can invoke Article 50 when it feels it is best placed to, to comment on that suggestion and the Brexit situation overall.

Here is my article. What do you think?

BREXIT – THE EU AND UK LEGAL AND CONSTITUTIONAL PROCEDURES


There are two constitutional legal procedures required to put into effect the democratically expressed Will of the People to Brexit.

One is the external requirement, under EU constitutional law, of activating Article 50 of the Lisbon Treaty. Article 50 is simple to activate and it is entirely in the hands of the UK as a Member State to do so in accordance with UK constitutional arrangements. The “Royal Prerogative” gives that power to the Prime Minister.

Once Article 50 has been activated there is a compulsory 2 year period of negotiation managed by the EU Commission but if no agreement is reached, then the UK’s membership of the EU lapses automatically. (Bad luck Scotland, but nice try Nicola Sturgeon!).

The other constitutional procedure is internal. There must be a substantial repeal by the UK’s Westminster Parliament of the European Communities Act 1972 (perhaps with some saving provisions).

If Scotland held the threatened second Independence Referendum and voted to go, a third possibility would arise because if the UK, which is the EU Member State was dissolved then all parts of the former UK State would be automatically outside of the EU.

Over the course of the next few months up until mid-September we will witness the pattern of events revolve again around the machinations of the British Political elite. The critical political challenge for Brexit to actually occur is the Conservative Parliamentary Party’s decision as to which two contenders for leader will go onto the ballot for all Conservative Party members to vote on.

If Boris Johnson is on the ballot then it is a racing certainty that he will win the leadership and become the next Prime Minister.

If the plotters against him succeed in keeping him off the ballot paper, then it becomes doubtful as to who would win and it will then be still more doubtful as to what happens about Brexit. The future of the Conservative Party would then also have been put in doubt because all its Brexit voters will be absolutely furious and electorally unforgiving.

In the meanwhile, legislation based upon the EU has lost the privileged status which Lord Justice Laws gave it in his judgment against the Metric Martyrs in 2002. Laws LJ held that the Referendum in 1975 gave the People’s democratic consent to the European Communities Act 1972 and thus conferred special status upon it as a constitutional statute. That consent has now been removed and with it the special status of all that strand of law!

Here is a link to the article which the Solicitors Journal wrote partly based upon my comments >>> http://www.solicitorsjournal.com/news/public/administrative-and-constitutional/26932/uk-decides-when-trigger-article-50-not-eu-say-le