Category Archives: theresa may

IS BORIS SERIOUSLY FOCUSED ON DELIVERING BREXIT?

 

IS BORIS SERIOUSLY FOCUSED ON DELIVERING BREXIT?

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

Our 2nd Article 50 case


2ndArticle 50 case

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

Mr Jonathan Stowell                                     

c/o Government Legal Department

Team B6

One Kemble Street

London WC2B 4TS

Dear Sirs


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

Letter Before Claim

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

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

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

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

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

4.    The details of the matters being challenged:-

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

5.    The details of any Interested Parties:-

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

6.    The Issues:-

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

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

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

What is sought from the Respondents is:

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

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

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

8.    ADR proposals:-

N/A

9.    The details of any information sought:-

Not applicable.

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

          Not applicable.

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

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

 0QP

12.  Proposed reply date:-

14 days from the date hereof.

Yours faithfully

Tilbrook’s

BRECON & RADNORSHIRE BY-ELECTION – COCK-UP OR STITCH-UP?

BRECON & RADNORSHIRE BY-ELECTION – COCK-UP OR STITCH-UP?

Last week on the 1st August there was a Parliamentary by-election, the reports of which had been very overshadowed by the national political events, like the formation of the new Boris Johnson Premiership and Cabinet.  Then almost out of the blue, as it were, we learnt that the Conservatives have lost the seat. 
There were suggestions in the Remainer Main Stream Media that Boris has already lost his bounce. A more obvious point on the facts would be one that they are not so keen to report, given their pro-Labour bias, that in fact the Labour candidate had almost lost his deposit in a Welsh constituency which had once been part of Labour’s Welsh permanent fiefdom!  The seat was Labour for many years until 1979.
A bit more enquiry reveals that the Conservative Party’s candidate had previously been the MP, but the by-election was called as a result of a Recall Petition because he had been convicted of creating fraudulent invoices and claiming fraudulently on his parliamentary expenses. 
So what on earth induced the Conservative Party to put him up again as a parliamentary candidate?  Was it incredible arrogance?  Incredible stupidity? Or some sort of devious plot?
Of course in human affairs generally it is often a mistake to discount the role of sheer mistaken stupidity.  That maybe what has happened here; perhaps coupled here with a sense of obstinate entitlement. 
There is however an alternative idea to consider. 
Let’s first look at the timeline here:-
The previous MP and recent Conservative candidate, Christopher Davies, pleaded guilty of putting in false expenses in March 2019 and in April he was sentenced.  
The Speaker launched the legal petition on the 24th April and the petition was opened on the 9th May and remained open for signatures until the 20th June.  It only needed to get 5,303 signatures but in fact got 10,005 signatures.  10,005 petitioners who signed to remove him amounted to 19% of the 53,032 electors in Brecon and Radnorshire. 
 
Mr Davies was re-selected as the Conservative candidate (the re-selection process now requires not only the local party to support the candidate, but more importantly requires the National Nominating Officer of the Conservative Party to sign the candidate’s Nomination Certificate.  The National Nominating Officer of the Conservative Party is Victoria Carslake, who was of course an appointment by Theresa May). 
The close of nominations in this by-election took place on 5th July and, as I mentioned, the election took place last week on the 1st August. 
This timeline alone shows that this by-election can really have absolutely nothing to do with Boris Johnson.  The fact that the recently convicted fraudster Conservative candidate still managed to do so well might really show that Boris Johnson, if he had any effect on it at all, very nearly got him re-elected however unsuitable he might be as an MP!
So I return to the question of why would the Conservatives put up a candidate who has not only been recently convicted of fraud on his parliamentary expenses, but also to strong feeling locally about this, triggered this by-election? 
Another possibility, other than Conservative stupidity, might be another devious plot by Theresa May and her inner circle. 
We now know that Theresa May never sought to negotiate any form of proper Brexit.  She never suggested to the EU negotiators that we might leave with ‘No Deal’ and she never attempted to get the United Kingdom a good deal.  Her whole effort was to try and tie us up as close to the European Union as possible, which is why she went on, not only lying about what she was doing, but also signing us up to yet further EU commitments, such as the new EU Army. 
She also called her General Election not because she wanted to guarantee Brexit, but rather because she wanted to be independent of the Brexiteers and to impose her Agreement on the country. 
So I suggest that a possible scenario is that this totally unsuitable Conservative candidate was re-selected in order to lose that seat and so give Remain supporters in the House of Commons yet more clout. 
All this was going on whilst Theresa May was trying to and partly succeeding in getting huge further spending commitments which would bind the hands of her successor, which was already most likely to be Boris. 
If this is what was actually happening, then this by-election is nothing to do with Boris except in the sense that it was always set up as a trap. 
The most laughable suggestion is that this is all the fault of the Brexit Party splitting the vote.  This is of course a variant of the old line of the most cynical Establishment vote manipulators that you cannot vote for anybody else other than the Conservatives otherwise you get Labour (or vice or versa if you are a former Labour supporter). 
Whilst it is true that the Brexit Party got more than the difference between the Conservative and Liberal Democrat, it does not follow that people who voted Brexit Party would have voted for the Tory convicted fraudster.
Of course all this undemocratic nonsense relies upon the most appallingly undemocratic electoral system, the “First Past the Post” which regularly cheats large numbers of voters out of their preferred outcome. 

WITHDRAW AGREEMENT – HONEST NEGOTIATION OR TROJAN HORSE?

WITHDRAW AGREEMENT – HONEST NEGOTIATION OR TROJAN HORSE? 

The Homer’s Odyssey tells us of the devious stratagem of Odysseus in creating a wooden horse which tempted the Trojan’s to drag it into their city, without checking whether it had got any Greek soldiers inside, who after dark, were able to creep out and open the gates to the city and let in the Greek Army to rape, pillage and kill or enslave the unwary Trojans and to destroy Troy. 
Similarly the Withdrawal Agreement is superficially not so bad an Agreement. Theresa May and her supporters were attempting to drag in her Withdrawal Agreement, ignoring the hidden provisions of the backstop.  It is these which, which basically mean that the UK would automatically fall permanently into the power of the EU in the near certain event that we cannot satisfy the EU on various tricky provisions, including notably what happens to the Irish border. 
I think very little reflection should have told anybody involved and thinking about it, that it was obvious that we would be falling into the backstop provisions and then, as one of Guy Verhofstadt’s staff described it, have the status of the EU’s First “Colony”. 
One of the reasons why it should be obvious to such people is because the EU is also trying to get Switzerland into almost exactly the same set of provisions as appear in the backstop.  It is clearly a game plan of the EU.
Anyone who has any patriotic pride in our country should never have been willing to accept such an outrageous arrangement.  The revealing thing is that leading “Conservatives” were so unpatriotic that they were willing to agree it. 
Here is an interesting article about the EU’s bullying of Switzerland by Professor David Blake:-
EU bullying of Switzerland – the shape of things to come and how we can fight back
The EU is using bullying tactics to bring Switzerland to heel. This should be a warning to the UK as we fight off the Withdrawal Agreement which seeks to put us in a similar position of inferiority. We should seize the opportunity to join forces with the Swiss.
Switzerland is a free independent country in the heart of Europe and its citizens like it that way. They have made it very clear in referenda that they do not want to join the European Union.
But the EU does not like this at all and it is using all sorts of bullying tactics to bring Switzerland to heel. In 2014, it threatened Switzerland with losing access to EU markets when it voted in a referendum to limit ‘mass migration’ to stop the undercutting of local wages. Switzerland is a signatory to the Schengen Agreement on free movement, but is not a member of either the Single Market or the Customs Union. It eventually backed down.
This just emboldened the EU. Guy Verhofstadt, the European Parliament’s Brexit co-ordinator, and the rest of the EU elite want to turn the EU into an empire and they clearly now see Switzerland as a potential colony.
Switzerland and the EU have around 120 bilateral agreements governing their trading relationships – the so-called Swiss model. This leaves Switzerland with far too much flexibility for the EU’s liking. In short, the Swiss have been allowed too much ‘cherry picking’. This is despite the fact that the EU had a trade surplus with Switzerland of €48bn in 2018 (with exports worth €157bn and imports worth €109bn).
The EU wants to put a stop to the cherry picking. It is currently trying to bring Switzerland under its legal and regulatory control by forcing it to accept ‘dynamic alignment’ with EU rules on migration, social security, and key areas of economic policy in perpetuity – plus final arbitration by the European Court of Justice. Because of Swiss resistance, as these bilateral agreements comes to an end, the EU is refusing to renew them. It has just suspended the trading of Swiss shares on EU stock exchanges and is threatening to withdraw mutual recognition for exports of medical equipment. Switzerland is being systematically closed out of the EU’s economic, transport and energy system until it again backs down. For example, it has been excluded from EU legislation on power grids and network codes. This is despite the fact that around 10% of the EU’s electricity flow between member states passes through Switzerland. The EU is clearly supremely confident that Switzerland would not dream of retaliating. But given the size of the trade surplus and with a lot of intra-EU trade passing through Switzerland, slowing down EU lorries at the border – as the EU is threatening to do with us – must be quite tempting.
All this should be a lesson for us in the UK as we fight off the Withdrawal Agreement with its similar requirement for ‘dynamic alignment’ with EU rules and the final jurisdiction of the ECJ. And, of course, the WA quite deliberately has no termination date, so it gives us no opportunity to renegotiate its terms in the future. It holds in perpetuity. We know from the BBC4 fly-on-the-wall documentary Brexit: Behind Closed Doors broadcast in May 2019 that a member of Verhofstadt’s private office views us as the EU’s ‘first colony’, so Switzerland’s experience should be a warning for us about the shape of things to come when it comes to our future relationship with EU.
It is therefore time not only for us, like the Swiss, to resist any further EU bullying, but to fight back, particularly when it comes to the City of London. The EU is fully aware of the importance of our global financial centre to EU financial stability. This gives London too much power in the EU’s view. This is why it wanted to clip the City’s wings in the WA, by having a relationship based on ‘equivalence’ which the EU can withdraw at short notice without any right of appeal. The City is six times bigger than all the other EU financial centres combined. So the EU’s stance is totally unacceptable and needs to be replaced with either a form of ‘enhanced equivalence’ or ‘mutual recognition’ which cannot be withdrawn unilaterally.
But we should go further, as Matthew Lynn has recently suggested, and form an alliance between the UK and Swiss financial centres: ‘By far the two strongest financial centres in Europe are the City and Zurich. If the two of them teamed up, they could create a network of expertise that would provide a real alternative to the EU – and one to which many European companies, fund managers and investors would flock. … [The EU row with Switzerland offers] the City of London the perfect opportunity to create a rival regulatory regime that covers more than one finance centre’. As the current disastrous plight of Deutsche Bank and the even bigger fiasco of the euro show, the EU is not actually very good at finance and we should not allow ourselves to dragged down by their incompetence.
The EU bullying of Switzerland is too good an opportunity to miss. It’s time for us and the Swiss to fight back. In July 2019, the UK and Switzerland signed an agreement allowing their citizens to work in each other’s country in the event of a no-deal Brexit. There need to be many more deals like this.
Here is a link to where the article originally appears>>>
https://briefingsforbrexit.com/eu-bullying-of-switzerland-the-shape-of-things-to-come-and-how-we-can-fight-back/

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

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

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

IN THE HIGH COURT OF JUSTICE                                        Claim No. CO/1322/2019
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
B E T W E E N :
THE QUEEN
(On the application of THE ENGLISH DEMOCRATS)
                                                                                                                               Claimant
– and –
THE PRIME MINISTER
                                                                                                                    First Defendant
– and –
THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
                                                                                                                Second Defendant
                  ______________________________________________________
CLAIMANT’S REPLY TO THE DEFENDANTS’
SUMMARY GROUNDS OF RESISTANCE
                   _____________________________________________________                
Defined terms are as used in the Claimant’s Written Submissions
INTRODUCTION
1                     The Defendants’ Summary Grounds of Resistance (‘the SGR’) seek to deprive the Claimant of the right to an oral hearing through a declaration that the Grounds are totally without merit (CPR r. 54.12 (7)).  Such a declaration would be wrong as this claim is at least ‘highly arguable’, as a retired lord justice considers.[1]   It is a claim which ‘on a quick perusal… discloses what might on further consideration turn out to be an arguable case…’ and should thereby be given permission.  ‘The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application’ (R v Inland Revenue Commissioners ex parte NFSESB Ltd [1982] A.C. 617 at p 642, per Lord Diplock).
2                     This is not an attempt to engage in politics by another means but a question of whether the Crown may, without primary legislation and potentially indefinitely, extend the application of EU law, the obligations of membership and the fetter it places on Parliamentary sovereignty.  It is a claim that ‘merits full investigation at a full oral hearing’ with all the parties represented (R v Legal Aid Board ex parte Hughes (1992) 5 Admin. L. Rep. 623); and it is far from being a ‘misguided’ or ‘trivial’ (NFSESB)
3                     The Court will also be alive to the distinction between cases that are merely ‘unarguable’ and those that are also ‘totally without merit’ and so ‘bound to fail’, set out in Wasif v Secretary of State ([2016] All ER (D) 96 (Feb)) at paras 15 and 17 (3):
… cases in which the judge considering an application for permission… can see no rational basis on which the claim could succeed… are in our view…“bound to fail” (or “hopeless”)… But… the claimant [may] identif[y] a rational argument in support of his claim [which] the judge is confident… taking the case at its highest, ..is wrong… On this approach, even though the claim might be said to be “arguable”… the prospect of it succeeding ceases to be “realistic”, if the judge feels able confidently to reject the claimant’s arguments…
…an oral renewal hearing… is.. an opportunity for the claimant to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers… The points in question may not always have been anticipated or addressed in the grounds and skeleton argument [and] [t]he judge should only certify the application as TWM if satisfied that… a hearing could not serve such a purpose; the claimant should get the benefit of any real doubt.
4                     The Defendants’ reliance on the disruptive consequences of the UK being found already to have withdrawn from the European Union and ‘all the recent events [and] consideration of the question by Parliament’ since the extension challenged (SGR para 1) have no bearing on whether it is lawful.  In the words of Lord Denning, ​“… ​even​ ​if​ ​chaos​ should result [it is not conceded that it would],​ ​still​ ​the​ ​law​ ​must​ ​be obeyed” (Bradbury​ ​v​ ​London​ ​Borough​ ​of​ ​Enfield​ ​(1967)​ ​3​ ​ER​ ​434,​ ​(1967)​ ​1 WLR​ ​1311​).
5                     Moreover, the Defendants have failed to contest any of the Claimant’s submissions in pre-action correspondence,[2]having been given the opportunity to do so.
6                     The Court should take into account the effect of removing the right to oral consideration of a claim of such constitutional importance through one judge considering only arguments made on paper.  It is only because of the stark consequences of such a decision that they are filed.
SUBSTANCE OF THE RESPONSE TO THE CLAIM
7                     Para 17 of the SGR assumes the existence of a prerogative power to agree extensions of time under A50.3.  Yet, as there was no prerogative power to notify (R (Miller) v Secretary of State [2017] AC 61) how can there have been a pre-existing treaty making prerogative to vary the period determined by notification?  (See the Claimant’s Submissions paras 40-50.)
8                     The Defendants rely on the ‘detailed scheme’ of ‘Parliamentary control’ of approval of any withdrawal agreement (SGR para 10 (d)).  Yet there is no such control over applications for and agreements to extensions of the A50 period in the 2017 and 2018 Acts. As outlined in the Claimant’s Submissions (paras 34/35), regulations made under s 20 (3) and (4) have no bearing on the prime minister’s power to agree to an extension of the A50 period in EU law.  They may be made only afteran extension has been agreed between HMG acting ‘on behalf of’ the UK and the European Council: something unchallenged in the SGR (where HMG’s actions on the international plane are accepted to be the ‘target’ (para 2 (a)).  The affirmative resolution procedure (para 14 of the Sch 7 to the 2018 Act, cited in SGR para 10 (c)) is irrelevant: the date on which the Treaties are to cease to apply must already have been changed before Parliament may vote on the resolution.
9                     While the regulations may only be made after an extension has been finalised, it does not follow that the 2018 Act ‘presupposes’ that such a prerogative power exists (SGR para 19 (a)).  Even if it did, such a legislative supposition could not be determinative of whether such a power exists: prerogative powers either exist or they do not.  Moreover, Parliament may not grant a statutory power to another body ​by​ ​general​ ​or ambiguous​ ​words ​(R​ ​v​ ​Secretary​ ​of​ ​State​ ​ ​ex​ ​p​ ​Simms​ ​[2000]​ ​2​ ​AC​ ​539; Ahmed​ ​v​ ​HM​ ​Treasury​ ​[2010]​ ​UKSC​ ​2​); and ‘Henry VIII’ orders such as those authorised by s 20 (3) and (4) must be construed narrowly (see the Claimant’s Submissions para 38).
10                 The EU (Withdrawal) Act 2019 (‘the 2019 Act’) on which the Defendants rely (SGR paras 13 and 20) is irrelevant as it can have no bearing on the lawfulness of a purported prerogative act before it became law.  As with the 2018 Act, a ‘legislative supposition’ is not determinative of whether a prerogative power exists and cannot create a statutory power.
11                 At para 21 of the SGR, the Defendants fail to engage with the Claimant’s submission that an extension – which may be requested an indeterminate number of times and may be agreed for an indefinite period – does change legislation, create offences and raise supply (see the Claimant’s Submissions paras 40-50).  The 2017 Act created a statutory power to notify which would lead inexorably to the end of the UK’s EU membership,[3]the curtailment of Parliamentary sovereignty and the continuance of EU law, ending two years after notification.  The ability of the Crown to agree to a withdrawal agreement is an inapt comparison: an agreement made before that period ends can only have accelerated the disapplication of the rights and obligations of EU membership.  It is at least arguable that the prerogative cannot be used to extend those obligations and liabilities; and it is close to unarguable that no statutory power was created to do so (which it is conceded is not the Defendants’ case).
12                 Alternatively, an extension of the A50 period would frustrate the legislative intentions of Parliament expressed through the 2017 and 2018 Acts.  The Defendants concede that the 2017 Act provided only a power to notify (para 22 (a)); the definition of exit day is irrelevant (see above); and no reliance is placed by the Claimant on the anticipated repeal of the 1972 Act (SGR para 22 (c)) – indeed, the Claimant’s submissions specifically accept that s 1 of the 2018 Act is not in force (para 12) and consider the consequence of the Treaties ceasing to apply before its repeal (paras 70-72).
13                 It is noted that the Defendants do not challenge the Claimant’s analysis that a request for or agreement to an extension of the A50 period can have no effect in EU law unless the agreement is made ‘on behalf of the Member State’ in accordance with that state’s constitutional arrangements (the Claimant’s Submissions, paras 60-68).
AFTERWORD
14                 The order of Sir Ross Cranston (who, in fairness, had not considered the submissions in this case) does not assist the Defendants.  Not only is his decision obiter (being made on grounds that the Senior District Judge had no jurisdiction to consider the Exit Day Regulations) it is, with respect, also based on the false premise – one not even relied upon by the Defendants – that s 20 (3) and (4) of the 2018 Act and the Exit Day Regulations have any bearing on the lawfulness of the agreement to extend the A50 period.  It is of course understood that it is difficult to make decisions on complex matters of law without oral argument.
15                 The refusal of the Defendants even to concede standing is surprising and strikingly defensive.  That the Claimant is a political party cannot deprive it of standing.  Their imputed motives for the claim are particularly unsuited for consideration at permission stage, aside from being irrelevant; and they are quite clearly a body made up of individuals, most of whom would each have standing to challenge the unlawful use of the prerogative in these circumstances.  (See Claimant’s Submissions, paras 73-76.)
16                 The Court is asked to take judicial notice of the fact that the peremptory treatment of the Claimant’s Submissions is similar to that of HMG in the Detailed Grounds of Resistance in Miller (attached at Exhibit 1).  In those grounds HMG asserted that:
(1)        The claim was non-justiciable (paras 5 (3) and 13-18);
(2)        The relief claimed was ‘constitutionally impermissible’ (paras 5 (4) and 19-23);
(3)        The relief would ‘trespass.. on proceedings in Parliament’ (para 21); and
(4)        It was ‘crystal clear’ that the Prerogative could be exercised to notify under A50 (para 26).
Claimants whose cases are asserted to be obviously flawed can eventually persuade the Supreme Court that they are right; and the assertiveness with which a submission is put has no correlation to the likelihood that it is correct.
23rd April, 2019
FRANCIS HOAR
Field Court Chambers,
5 Field Court,
Gray’s Inn,
London WC1R 5EF

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Claim No. CO/1322/2019
B E T W E E N :
THE QUEEN
(On the application of THE ENGLISH DEMOCRATS)
Claimant
– and –
THE PRIME MINISTER
First Defendant
– and –
THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
Second Defendant
_____________________________________
CLAIMANT’S REPLY TO THE DEFENDANTS’ SUMMARY GROUNDS OF RESISTANCE
_____________________________________
Francis Hoar
Field Court Chambers,
5 Field Court,
Gray’s Inn,
London WC1R 5EF
Robin Tilbrook
Tilbrooks Solicitors
Quires Green
Willingale
Essex
CM5 0QP
Telephone: 01277 896 000

[1] Sir Richard Aikens: see para 77 of the Claimant’s submissions.
[2]All of which is exhibited to the Grounds.
[3] And, at the time it was enacted, it was considered (and agreed by all counsel in Miller), that notification was irrevocable, the CJEU only later deciding that it was not (Wightman v Secretary of State ((2018) C-621/18).

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

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

Here is the Government’s defence to our claim that the UK is Out of the EU.
It is drafted by their top man, Sir James Eadie QC. 
Sir James was also the same barrister who went so far over the top as to claim, in his Grounds of Resistance in the Gina Miller case, that it would be unconstitutional for the Court to even consider her claim!
Needless to say that approach failed at every hearing of that case!
Here is his effort to attack our claim:-
IN THE HIGH COURT CO/1322/2019
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
BETWEEN:
THE QUEEN
(on the application of)
THE ENGLISH DEMOCRATS
Claimant
-and-
(1) THE PRIME MINISTER
(2) SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
Defendants
__________________________________________________________

SUMMARY GROUNDS OF RESISTANCE

__________________________________________________________
 

INTRODUCTION


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

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

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

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

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

THE LEGAL CONTEXT


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

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

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

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

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
 
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”
 
5. The European Communities Act 1972 (“the 1972 Act”) was enacted by Parliament to give effect to the UK’s membership of the EU generally; and to give effect to all “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties” (s.2(1)). The 1972 Act remains in force.

6. Section 1 of the European Union Referendum Act 2015 (“the 2015 Act”) provided for a referendum on the question whether the UK should leave or remain a member of the EU. On 23 June 2016, it was decided by a majority of those who voted in the Referendum that the UK should leave the EU.
 
7. On 24 January 2017, the Supreme Court decided that primary legislation was required in order to authorise a notification under Article 50(2): see R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61 (“Miller”).
 
8. Subsequently, Parliament passed the European Union (Notification of Withdrawal) Act 2017 (“the 2017 Act”). Section 1(1) provides: “The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.” This therefore provided the requisite legislative authority for the Prime Minister to notify the intention of the UK to withdraw from the EU under Article 50(2).

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

10. On 26 June 2018, the European Union (Withdrawal) Act 2018 was enacted. The 2018 Act makes provision for the repeal of the 1972 Act and for the retention in domestic law of, in broad terms, existing applicable EU law following withdrawal.
 
a. Section 1 provides that the 1972 Act is repealed “on exit day”. Section 1 is not yet in force.

b. Section 20 defines “exit day”. As enacted, it provided that:
 
“(1) …“exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2)
to (5))…

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


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

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

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

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

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

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

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

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

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

c. Section 2 of the 2019 Act amended §14 of Schedule 7 to the 2018 Act, so as to alter the process by which any further regulations amending the definition of “exit day” to the negative resolution procedure.
 
14. On 10 April 2019, the Government agreed with the European Council a further extension under Article 50(3) until 31 October 2019, unless elections to the European Parliament are not held by the UK in which case the extension shall cease to apply on 31 May 2019 (“the Further Extension Agreement”). The terms of the formal agreement are set out in European Council (EU) Decision 2019/584 of 11 April 2019 [2019] OJL101/1.

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

RESPONSE TO THE CLAIM


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

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

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

19. So far as concerns the 2018 Act:
 
a. Section 20 as a whole presupposes that the prerogative power to seek and agree extensions exists. Thus, s.20(3) expressly recognises that an extension might be agreed between the UK and the EU under Article 50(3) TEU, and s.20(4) makes provision for the Government to amend the definition of “exit day” by regulations. Parliament did not purport to control or limit the prerogative power to agree such extensions under Article 50(3). Rather, Section 20(4) restricts the power to make regulations amending the definition of “exit day” to circumstances where an agreement under Article 50(3) has already been reached, in order that the definition be aligned with the date of withdrawal under the Treaties. It is therefore evidently premised upon Governmental exercise of the prerogative already having occurred.

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

20. So far as concerns the 2019 Act:

a. Section 1(6) recognises and preserves, in terms, the Government’s power to ‘seek and agree’ extensions of time under Article 50(3). That is the sole purpose of that provision.
2b. To the limited extent that Parliament intended to control or limit that prerogative power in the 2019 Act, it did so in express terms (eg in ss.1(4)-(5)); and then went out of its way to make clear (in s.1(6)) that otherwise the prerogative powers are preserved. 

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

22. It is equally plain that an extension of the UK’s period of membership does not frustrate the purpose of any statutory provision:
 
a. An extension of time under Article 50(3) does not frustrate Parliament’s expressed intention in s.1(1) of the 2017 Act that the UK should withdraw from the EU. Parliament set no date by which that intention was to be effected: it provided only a power to notify under Article 50(2), which could be exercised at any time.
 
b. Section 20(1) of the 2018 Act, as enacted, gave a specific definition of “exit day” as 11.00pm on the 29 March 2019. However, that was evidently to reflect the fact that under the terms of Article 50 – given the date of the notification – the ordinary two year period would expire on 29 March 2019. In any event, and dispositively so far as this point is concerned, s.20 also made direct provision to enable and to regulate – in ss.20(3)-(4) and §14 of Schedule 7 – extensions of time which would alter the definition of “exit day”. It is therefore the Claimant’s position, that there is no power to agree an extension, which would frustrate the evident purposes of ss.20(3)-(4). The extension regulation powers would be denuded of any purpose or function. Parliament would have legislated in vain to permit regulations to be made to reflect an agreed extension of time under Article 50(3) if, as the Claimant asserts, only primary legislation could authorise such a step.
 
c. No assistance can be drawn from the anticipated repeal of the 1972 Act in section 1 of the 2018 Act. Section 1 is not in force, and the commencement of it was both tied in terms to the definition of “exit day” (as to which, see above)
and left by Parliament to be dealt with in regulations: s.25(4). The 1972 Act remains fully in force as an expression of Parliament’s continued intent. Any extension of time of the UK’s membership of the EU is wholly consistent with
the intention of Parliament as expressed in the 1972 Act. Again, it is the Claimant’s position which would frustrate the continued intention of Parliament by seeking to render the 1972 Act empty of effect without it having been repealed.
SIR JAMES EADIE QC
CHRISTOPHER KNIGHT
 
17 April 2019

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

Latest twists in the Brexit Parliamentary fiasco and about the case to stop any extension to Article 50

Following the latest twists in the Brexit Parliamentary fiasco and my previous blog article about the case to stop any extension to Article 50 except by a full Act of Parliament, I have written again to the Government’s lawyers as follows:-
Mr Jonathan Stowell
c/o Government Legal Department
Dear Sir
Re:  Proposed Action
        English Democrats – v – the Secretary of State for Exiting the          
        European Union
We refer to the above matter and to our letter of 20th March.  We note that, since that letter was dictated, the Prime Minister has written a letter to the President of the European Council, Mr Donald Tusk, formally asking for an extension of the Article 50 Notice period.  This request for an extension has been made without the authorisation of an Act of Parliament. 
Ministers, including the Prime Minister, only have official power either on the basis of Statutory powers or on the basis of Royal Prerogative powers. 
A long line of legal authority, including the Gina Miller case, has repeatedly reaffirmed that the Prerogative powers only exist in the absence of Statutory powers.  The only relevant Statutory power was that set out in the EU Withdrawal Act 2017, which gave the Prime Minister power to serve a Notice to terminate the UK’s membership of the EU. 
It follows that on the face of it, the Prime Minister’s request for an extension is illegal. 
Also any agreement for an extension which might have been agreed by the European Council is also without any Statutory authority. 
We thought it only proper to raise these points in the light of on-going developments, especially in view of your not having fully responded to our initial Letter before Claim. 
Yours faithfully
Tilbrook’s

A follow up about the case to stop any extension to Article 50 except by Act

The follow up to my previous blog article about the case to stop any extension to Article 50 except by a full Act of Parliament is that I have had this letter from the Government’s lawyers:-
Dear Mr Tilbrook
Re:  Response to Letter Before Claim
1.    We write in response to your letter before claim dated 28 February 2019 in which you seem to argue that any extension to or revocation of the Article 50 Notice required an Act of Parliament.  This letter, sets out the Secretary of State for Exiting the European Union’s response to your proposed claim and has been written in accordance with the Pre-Action Protocol for Judicial Review.
The Proposed Claimant
2.    The proposed Claimant is Mr R Tilbrook:
Quires Green
Willingale
Ongar
Essex
CM5 0QP
The proposed Defendant
3.    The proper Defendant to this matter is the Secretary of State for Exiting the European Union:
c/o Government Legal Department
Team B6
One Kemble Street
London
WC2B 4TS
Reference details
4.    Our reference for the matter is Z1904738/JTZ/B6
5.    Jonathan Stowell has conduct of this matter on behalf of the Secretary of State for Exiting the European Union.  Any further correspondence or service of documents in relation to this matter should be addressed to him at the above address.
Response to the proposed claim
6.    As you will be aware the pre-action protocol for Judicial Review provides that the letter before claim should contain the date and details of the decision, act or omission being challenged.
7.    Your proposed claim fails to identify any decisionmade by the Secretary of State or indeed any other person or public authority.  The reason you are unable to identify the date or details of any decision to extend or revoke the United Kingdom’s notification to leave the European Union is because no such decision has been taken.  You have not, therefore identified a decision that is capable of being the subject of a judicial review.
8.    To be clear, the Government’s firm policy position is that the Article 50 Notice will not be revoked.  A clear majority of the electorate voted to leave the EU and both the will of the British people and the democratic process which delivered this result must be expected.  The British people gave a clear instruction to leave, and that instruction is being delivered on.
9.    For the above reasons your proposed claim is wholly misconceived and totally without merit.
Details of any other interested parties
10.You have failed to provide any details of the proposed interested parties.  As you will be aware should you decide to issue proceedings, you are required to serve the Claim Form on all persons you consider to be an interested party in the proceedings (see rule 54.7 of the Civil Procedure Rules 1998). 
11.We have not identified any other parties who may have an interest in the proposed claim.
Alternative dispute resolution
12.N/A
Action
13.We have explained above why your proposed claim is misconceived, accordingly the Secretary of State shall not be taking any of your requested actions.
Response to requests for information and documents
14.N/A
Address for further correspondence and service of court documents
15.If, after proper consideration of this letter, you decide to issue proceedings, please arrange for all documents to be served on Jonathan Stowell at the above address.
Yours sincerely
Jonathan Stowell
For the Treasury Solicitor
I have replied as follows:-
Mr Jonathan Stowell
c/o Government Legal Department
Dear Sir
Re:  Proposed Action
        English Democrats – v – the Secretary of State for Exiting the          
        European Union
Thank you for your letter of 14th March. 
We would point out that our letter of the 28th February was written not on the basis of any decision yet taken, but on the basis of comments made in the House of Commons which suggested that an illegal decision might be in prospect.
We note that you have not denied that only a full Act of Parliament would legally authorise any delay in leaving the EU beyond the 29th March 2019.
In the circumstances we are enclosing a Request for Further Information to request that you formally admit our case.
Yours faithfully
Tilbrook’s
Enc.
And enclosed a formal Request for Further Information as follows:-
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
BETWEEN
THE QUEEN
ON THE APPLICATION OF THE ENGLISH DEMOCRATS
(REG. NO. 6132268)
Applicant
And
THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
Respondent
__________________________________________
REQUEST FOR FURTHER INFORMATION
___________________________________________
Of:-
“7. Your proposed claim fails to identify any decision made by the Secretary of State or indeed any other person or public authority.  The reason you are unable to identify the date or details of any decision to extend or revoke the United Kingdom’s notification to leave the European Union is because no such decision has been taken.  You have not, therefore identified a decision that is capable of being the subject of a judicial review.”
Request:-
Is it admitted that any purported extension of the UK’s Article 50 Notice beyond 29thMarch 2019 can only be authorised prospectively by a full Act of Parliament?
Of:-
“8. To be clear, the Government’s firm policy position is that the Article 50 Notice will not be revoked.  A clear majority of the electorate voted to leave the EU and both the will of the British people and the democratic process which delivered this result must be expected.  The British people gave a clear instruction to leave, and that instruction is being delivered on.”
Request:-
Is it admitted that any Revocation of the UK’s Article 50 Notice can only be authorised prospectively by a full Act of Parliament?
Tilbrook’s of Quires Green, Willingale, Ongar, Essex, CM5 0QP
Solicitors for the Applicant
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
BETWEEN
THE QUEEN
ON THE APPLICATION OF THE ENGLISH DEMOCRATS
(REG. NO. 6132268)
Applicant
And
THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
Respondent
__________________________________________
REQUEST FOR FURTHER INFORMATION
___________________________________________
Tilbrook’s
Quires Green
Willingale
Ongar
Essex CM5 0QP
Tel: 01277 896000
Fax: 01277 896050
Ref/Brexit

The purpose in writing in this way is to set up an application to the High Court for Judicial Review in the event that an Act of Parliament is not passed authorising an extension of the Article 50 Notice period beyond 11.00 p.m. on the 29th March 2019.
So if the Government fails to get an Act through by then we shall need to be ready to immediately apply for the High Court to rule that the UK has left the EU with no Withdrawal Treaty or Agreement.  We do therefore need help with a fighting fund to make sure we can do this without delay, given its huge constitutional importance. 

HOW BRITISH POLITICS IS FAILING

The web based comment blog “Unherd” hosts interesting contributions from politically minded commentators.  The one below is interesting.

It is a recent contribution from Peter Kellner.  Peter Kellner is the Blairite Director of YouGov, the internet based opinion pollsters.  His opinion on the interpretation of statistics is well worth considering.  So when Peter Kellner says:- “I wouldn’t bet a great deal against changes that could be immense, and which not everyone will like”, we should take notice.  Also, as he is an enemy of English Nationalism and he is fearful of the consequences – so that should be encouraging too!  

Here is Peter Kellner’s article:-

HOW BRITISH POLITICS IS FAILING

Something odd, and possibly dangerous, is eating away at the fabric of British politics. Brexit, of course, has much to do with it, but the consequences could be with us long after the current crisis is resolved, one way or another. 

Signs of the malaise can be clearly seen in an exclusive survey for UnHerdconducted by Deltapoll. It shows a remarkable lack of faith in both main party leaders, not just by voters generally but by high proportions of their own voters. Loyalties are being tested as never before.  

In the past, one party leader has occasionally had a shaky reputation among their own supporters on one or two characteristics. In the early 1980s, many Labour voters thought Michael Foot was weak; towards the end of her premiership, many Tories considered Margaret Thatcher out of touch. But I have never seen so many supporters of both parties simultaneously hold such low opinions of their own leaders across the board.  

The responses of all voters shows that both leaders have strongly negative ratings on all counts. That is unusual enough. But when we look at the figures, showing how Conservative voters view Theresa May, and the figures, showing how Labour voters view Jeremy Corbyn, the scale of the drama becomes clear. The positive scores for May range from 57% of Conservative supporters who say she is strong, down to 40% who back her on Brexit. Her average score among Tory voters is 45%. Labour voters give Corbyn positive scores ranging from 64 to 38%; his average is 50%. Among all voters, the averages are, of course, even worse: May 26%, Corbyn 28%. 

To put these figures in context, a successful leader would expect average scores of around 80% among their party’s own voters and 40% among the general public. For both leaders to fall so far short of these figures should set off alarm bells in both parties. 

Here, though, is the paradox. Precisely because both leaders have terrible ratings, the scale of the problem is less obvious than it would be if only one was doing badly. In that case (as when Foot led Labour and towards the end of Thatcher’s premiership), their party would have support well below 30% in the polls and facing a landslide defeat. Instead, nothing much seems to have changed since the 2017 election. An average of recent polls shows the two parties still close together, and with almost as many supporters as 18 months ago. The high commands in both parties, though plainly struggling over Brexit, see no wider reason to panic. 

In truth, they should be terrified. For the poll shows that the disenchantment with the main parties and their leaders has spread throughout Britain. Within Westminster, it is rare to find any backbench Labour or Conservative MP who, giving their candid views in private, will say their leader is any good or that their party is in anything other than deep trouble. But some hope this despair is a feature of the Westminster bubble, and that real voters away from London have not changed their views of politicians and parties that much. 

In fact, it is increasingly hard to avoid the conclusion that millions of voters Left and Right are losing faith in the people who either govern us today or aspire to do so in the future. 

Which brings us to the possible long-term consequences of current public attitudes. In any country with a different electoral system, the chances are that support for both Labour and the Conservatives would have crashed by now. Across Europe, countries with more proportional voting systems have seen the traditional big parties slump in recent years – even with leaders less widely derided than Britain’s.  

Here, first-past-the-post creates a huge barrier to entry. Elsewhere, small parties ranging from the Greens to the far right have obtained a foothold in their parliaments with as little as 5% support, and then managed to increase their credibility. Here, they can’t. In 1983, the Liberal/SDP Alliance won 26% and only 23 seats; in 2015 Ukip’s 14% gave them just a single seat.  

The party that might have benefited from the Tory and Labour travails is the Liberal Democrats. But they paid a heavy price for their role in the 2010-15 coalition government. While their support has picked up a little in recent months, they are still scarred by decisions they took almost a decade ago. 

It is, of course, possible that when the Brexit drama has played out, normal service will resume. Perhaps May and Corbyn will both be replaced by leaders who have greater personal appeal to the electorate. 

I am not so sure. My reason is that May and Corbyn’s truly awful ratings do not flow solely from their personal attributes. Both lead deeply divided parties, and these divisions are unlikely to disappear anytime soon. The faultlines will remain: inward-looking nationalism versus outward-looking enterprise with the Tories; ambitious socialism versus progressive capitalism with Labour. A leader that combined the strategic ability of Napoleon with the genius of Einstein and the moral courage of Mandela would still struggle to win public approval if they could not reunite their parties. The Deltapoll figures providence symptoms of a deeper crisis. 

In short, both main parties are more fragile and less stable than for many decades. First-past-the-post could save both Labour and the Conservatives from the consequences of their current divisions. But it is no longer ridiculous to image a different future. Once the adhesive glue of our electoral system starts to crack, things can change with bewildering speed. A century ago, amid the stresses of post-First-World-War Britain and the divisions within the Liberal Party, realignment happened quickly. Labour climbed from fourth place in 1918 to government in 1924.  

Will Brexit end up having the same glue-cracking effect? And if it does, will the beneficiaries be existing herbivores such as the Liberal Democrats and the Greens; or some new centre party created by disenchanted Labour and Tory moderates; or carnivores on the outer fringes of Right and Left? Is the century-long dominance of Britain’s Parliament by competing forces on the centre Right and centre Left about to end? 

Ask me again in 10 years’ time and I shall tell you. Meanwhile I wouldn’t bet a great deal against changes that could be immense, and which not everyone will like. 

Here is the link to the original article>>>https://unherd.com/2019/01/how-british-politics-is-failing/