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Saturday 4 May 2019

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 after an 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
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).


48 comments:

  1. Wow, tough read with lots of references to previous documents, but eventually I understand and see the sense of this response to the governments defence. It's difficult to see the court rejecting this case and if the government's oral defence is just as inadequate as it's written "resistance" then surely this is a "done deal" and we departed the EU on 29th March 2019...

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  2. Great to get an update on this bank holiday weekend. Makes it extra special, on top of taking yesterday off work too. Many thanks Robin for your tireless pursuit of justice for all the true UK patriots let down so badly by our mendacious Prime Minister, and the rest of Parliament.

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  3. Good Job Mr Hoar! Many thanks, and thank you Robin.

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  4. Thank you very much for all the work you have put into this case. Hope we are out of the EU and free of the flipping lot of them.

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  5. Excellent response. Hopefully we will get this to court and get this over the line and officially get rid of the unpaid bureaucrats that are destroying our sovereignty.

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  6. Keep up the GOOD WORK

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  7. This will go nowhere. Stupid Brexit voting losers.

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    1. Sorry Brexit voters won!

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    2. Wrong Remainiac. It was YOUR side who lost. It was YOUR side who started legal proceedings to block Brexit and it it will be YOUR side who finally if not in Court but the battlefield where you are forcing us to go.

      francis

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    3. Congratulations. Your flimsy effort to parody the government's SGR has been briefly entertaining.

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    4. Leavers won, get over it. Leavers have not blocked Brexit at all. What they are blocking is a FAKE BREXIT, which will be in NAME ONLY, but in REALITY KEEPS US IN THE EU INDEFINITELY.

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    5. Anonymous5 May 2019 at 09:39

      This will go nowhere. Stupid Brexit voting losers.


      That has to be the most stupid thing I've ever read.
      'Brexit losers'?
      Did it slip past you that WE WON?
      Democratic vote. Leave won so remainers insist that democracy should be scrapped because they don't like it.
      And by the way, thank remainer Gina for helping us :)

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  8. Thanks for the great work Robin and the update a very interesting read

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  9. Thank you so much Robin for keeping us updated. Mr Hoar is doing an exemplary job, I have taken time to read this carefully and it demonstrates an extremely strong and credible case that we left the EU on 29th March.

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  10. The best way of dealing this is by the judiciary. May lied 108 times about leaving on 29th. Holding her firmly to account is the best way out of the EU. My ancestor Will Harbord founded The British Constitution, great to see his work being upheld here.

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  11. Thank you for your hard work. We all owe you a debt of gratitude. Great that the Gina Millers case is being used as a precedent to argue this case.

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  12. Just what the doctor ordered.

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  13. The newest Robin Of Loxley is in favour of the 17.4 million

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  14. An excellent presentation - well done. As far as I can judge, the case against the defendants hinges most importantly upon the statutory power of notification as invoked by the 2017 Act and whether or not the decision after the fact by the CJEU to overrule that statutory power is in fact permissible. In view of the fact that the CJEU is the legal arm of the EU and has for some considerable time passed legislation which simply satisfied the aspirations of the Commission, I would suggest that that ruling should be viewed with the utmost suspicion.

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    1. For some reason my post has been entered as "Unknown" when it should have been entered under my name i.e. Mike Delaney and my email address is delaneymike111@gmail.com

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  15. I wonder what Gina Miller thinks of it? She has been hoisted by her own petard.

    francis

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    Replies
    1. Poetic justice :)

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    2. Ms Miller should have taken note that Justuce has a TWO Edged sword :)

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  16. When is this due to be ruled upon?

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  17. in the upcoming EU elections, the EDPs leadership should forget its obsession with London and the South and concentrate on the North East, Yorkshire and the East Midlands for geographical and strategic reasons

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  18. Surely the law is law and if they can disregard and have no respect for the law then why should anyone else live by it, about time these MPs realised they are NOT above the law, regardless of the outcome.

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  19. Surely the law is law and if they can disregard and have no respect for the law then why should anyone else live by it, about time these MPs realised they are NOT above the law, regardless of the outcome.

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  20. Well done hope this gets us out of EU as soon as possible after you win the case! We walk away, no deal. We watched on Freeview channel 9 last night (Wed.08May2019) the EU meetings that have been taking place over the last few years. It really does show the contempt they have for us. Secretaries being allowed to call us F.....s no less. It reveals just how they want to stitch us up and change things once we have agreed something different. Please watch the 2nd half of the programme tonight. Thurs. 09 May 2019.

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  21. Curious why farage has not worked with this or even bringing it up on his comments on brexit it would help if as many people as possible were told of this situation it would help with donations etc and keep us all in hope.

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    Replies
    1. Notice Farage's patter..."We should've left on 29th March..." An obscure ref maybe?

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    2. Agree, why has no-one else, especially Farage, not adopted and/or endeavoured to promote this? Except, of course, The Express and Daily Mail tabloids? Assume that is because it has yet to be tested in Court? What a turn out it would be if the 'Miller' ruling, having caused the majority of procrastination and time-wasting in Parliament, then proves to be the Achilles Heel...? Good Luck and thanks to Robin Tilbrook and Associates !

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    3. Farage is a fake.
      If he was genuine about getting us out of the EU he's be endorsing and supporting this court case and Robin Tilbrooke - just like he supported and endorsed Bolton (to try and destroy UKIP).

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    4. It's pretty obvious why Farage won't get involved with or acknowledge Mr Tilbrooks case is because it is the English democrats. He would be terrified of appearing racist and backing a cause that supports England as having more importance than any other nation. No, not true, but I am positive that is the only reason, the fear of backing patriotism to England which would ultimately end up a frenzy like Tommy Robinson and the media will have their excuse to destroy him with lies like they always do.
      Farage isn't stupid, he knows the media and how they work and he is eager to win the reward of #10 and will not jeopardise what the media is capable of, so is playing safe.

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  22. Amazing work you guys are doing. We owe you the greatest gratitude. Thank you from the bottom of my heart.
    Paul

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  23. Thank you Robin and Mr Hoar! Our country's fate, it's democracy and global destiny currently fall's on your shoulders. We can no longer trust Westminster to uphold the will of the people - or not until the Brexit party starts to drain that swamp.... so for now, we owe you a huge gratitude for what you are doing. The irony of the Supreme Court's decision in the Miller case being used to confirm the legal standing here is incredible! The will of the people (majority - as we are talking about a democracy here) may very well be executed here thanks to your involvement. I salute you and will help contribute towards the legal costs here.

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  24. Well done. Thank you Robin xx

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  25. Did I hear correctly...on the news today Mr May encourages his wife to resign in 5 weeks...and this could be in court in 5 weeks? Coincidence or inside info?

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  26. Thank you for all the hard work Robin, I wish Nigel Farage would help you out by promoting this case, and get you some well needed money in from his rich friends. keep up the good work, I have great faith in you.

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    1. I think Nigel Farage has dismissed this case unfortunately. So I wouldn't expect any favours from him.

      francis

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  27. Robin, thank you for this. As the case has already gone to Court it doesn't matter how well funded our opponents are. Should they continue arguing that our case is weak and without merit without justifying their assertions they are breaking their Oaths. A solicitors duty is always to the Court not their clients. Just ask for their defence to be struck out as an abuse of the process.

    francis

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  28. Looking like 'our' only real hope of wrangling free from EU bonds.
    I have come to see the legal system as a means of procuring obscurity over common law rather than work with it in a unified manner where only those trained in it's arts are able to understand and succeed within it. Which of course is true (to myself), so thank heavens we still have some truly honourable, noble people who are able to fight against undemocratic traitors for the real greater good of the majority.
    It is so sad and disheartening that we are forced to defend democracy from being incrementally and systematically annihilated by the people we should have been able to trust to defend and uphold it's principle.
    Politics aught have 'evolved' into an equality based dogmatic process but has in fact followed the route of attrition through veiled corruption for the power elite.
    It is said that the pen is mightier than the sword, that does deeply depend on whom wields one or the other and where honourable means is depleted the pen and sword defend only money and wealth.

    Good luck, we are all rooting for you to succeed.

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  29. Best of luck, I was amazed to read that we were taken in to the then Common Market without being consulted either by General Election Manifesto or Referendum (as is required where British Sovereignty is being surrendered. John Major`s subsequent signature on the Maastricht agreement was similarly illegal.

    Harold Wilson`s "Yea or Nay" referendum in 1975 was also illegal, how could we agree to continue membership of an organisation that we never legally joined.

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  30. What happens if the new prime minister is a Brexiteer? Will they accept this and have us leave this way?
    We may well see how much of a Brexiteer they actually are?

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  31. Farage bangs on about putting Country before party but, won't shout about this from the roof tops and here's a good reason why. https://www.youtube.com/watch?v=oLNvcTK6DTU (38-48 mins in).

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  32. Keep this going please, great job!

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