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Saturday 30 March 2019

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


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

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

Please help as generously as you can! 

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

Here are the draft Grounds:-

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

BETWEEN

THE QUEEN
ON THE APPLICATION OF THE ENGLISH DEMOCRATS
(REG. NO. 6132268)
Applicant

-and-

THE PRIME MINISTER (1)

THE SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION (2)
Respondents



________________________________

GROUNDS OF THE APPLICATION
_________________________________


1.     It is submitted that the United Kingdom of Great Britain and Northern Ireland has left the European Union as of the 29th March 2019 after the expiry of its two year Notice to Leave dated 29th March 2017.

2.     Much of the relevant law has been explored and ruled upon by this Honourable Court and by the Court of Appeal and by the Supreme Court in the case of R (on the application of Miller and another) – v – Secretary of State for Exiting the European Union [2017] UKSC5.  Consequently Parliament enacted the European Union (Notification of Withdrawal) Act 2017. 

3.     The United Kingdom of Great Britain and Northern Ireland joined the European Union pursuant to Treaty in 1972 and subsequently the European Union Act 1972 was enacted to give domestic legal force to the Treaty obligations to the European Union.

4.     The current overarching constitution of the European Union was reformed under the Lisbon Treaty which was brought into direct legal force in the United Kingdom pursuant to the European Union (Amendment) Act 2008.

5.     Article 50 of the Lisbon Treaty  reads as follows:-

“Article 50 – Treaty on European Union (TEU)

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

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

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

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

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

5.     If a State which has withdrawn from the Union asked to rejoin, its request shall be subject to the procedure referred to in Article 49.”
                           
6.     On the 23rd June 2016 the voters of the United Kingdom, by a majority, and the voters of England by a larger majority,  voted, in the largest democratic mandate in the United Kingdom’s history, to leave the European Union. 

7.     In accordance with the United Kingdom’s “Constitutional Requirements” Parliament enacted the European Union (Notification of Withdrawal) Act 2017.  The Preamble to that Act states that it is:- “An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU” 

The Act provides:-

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

8.     Pursuant to the statutory power granted by the European Withdrawal Act 2017 the Prime Minister duly served the Notice on 29th March 2017.  That Notice expired on the 29th March 2019. 

9.     Accordingly it is submitted that as of the scintilla temporis after the expiry of the said notice on the 29th March 2019, the United Kingdom of Great Britain and Northern Ireland has left the European Union.

10. In the European Union Withdrawal Act 2018 Parliament further enacted a transitional scheme whereby it proposed to transpose all EU law into a direct effect in the UK jurisdictions of Northern Ireland, Scotland and England and Wales.  Much of that Act has not been brought into force.  The Act mis-describes its implementation date as “exit day”.  This is something of a misnomer since under the true construction of this Act it has no role, either purported or implicit, in determining the date of departure of the UK leaving the European Union.  Within the meaning of the Act, “exit date” is merely the implementation date for the Act’s transactional arrangements.

11. The Applicant is aware that there has been purported ministerial Regulation under the 2018 Act which may have been approved by resolution in both Houses.  However even if it has, it is submitted that such a Regulation cannot of itself be in any way definitive of the UK’s actual departure from the European Union.  The relevant wording of the Act makes this clear:- 

“European Union (Withdrawal) Act 2018

An act to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.

[26th June 2018]

1 Repeal of the European Communities Act 1972

The European Communities Act 1972 is repealed on exit day.

2 Saving for EU-derived domestic legislation

(1) EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.

20 Interpretation

(1) In this Act—

“exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2) to (5));

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

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

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

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

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

12. Despite the express wording of the European Union (Notification f Withdrawal) Act 2017, expressly only empowering the Prime Minister to give Notice to withdraw the United Kingdom from the EU, the Prime Minister has purported to request an extension of the Article 50 date for departure and subsequently purported to agree an extension to the date of departure. 

13. It is submitted, in accordance with long and high authority of legal precedents and also recently and comprehensively in R (on the application of Miller and another) – v – Secretary of State for Exiting the European Union [2017] UKSC5 that, statute fully displaces any residual prerogative powers. 

14. In the premises the only power that the Prime Minister had, as regards Article 50, was the service of the Notice withdrawing the United Kingdom from the EU and giving two years notice.  That power was functus officio on the 29th March 2017. Accordingly, her purported request for an extension of the date of departure and the Government’s purported agreement to such an extension is and was unlawful and is and was null and void.

15. In the premises the Applicant seeks a Declaration from this Honourable Court that the United Kingdom of Great Britain and Northern Ireland left the European Union upon the expiry of the Article 50 Notice on the 29th March 2019.




Statement of Fact

I believe that the facts in these Grounds are true.



Signed …………………………………           Dated ……………………..
            Robin Charles William Tilbrook





Friday 22 March 2019

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


Wednesday 20 March 2019

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 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.

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 29th March 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.