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Saturday, 7 September 2019

Our “Defend Brexit” case is mentioned in key Commons Debate

Our “Defend Brexit” case is mentioned in key Commons Debate

On Wednesday the former Conservative Leader, Iain Duncan Smith, mentioned our case during the key debate on whether the Commons was going to be able to vote to deny a ‘No Deal’ Brexit.

You can see the context of the debate and his mention of the case on this link>>> (10 min either side is left in for context
The point at which he references us is at 11:47 in this video and at 15:06:12 in the original )

If you watch Speaker Bercow’s reactions and expressions and listen carefully to his reply you may feel, as I do, that he is trying to be evasive and deceptive.  My guess is that while he had been advised that the Bill required “Queen’s Consent” he had then decided to ignore that advice because it would mean that the Government could refuse to give that “Consent” and the Bill which he supported would then fail. 

As Bercow is a prime example, of a MP who is trying to use every trick in the book to pervent Brexit, that would come as no surprise!

The question for Speaker Bercow was quite simple and ‘binary’.  Either the Royal Prerogative was affected by the Bill (in which case “Queen’s Consent” was required) or Royal Prerogative wasn’t affected (in which case no “Queen’s Consent” was required)!

Speaker Bercow ruled that there was no effect on the Royal Prerogative which means that he ruled that the extensions to the Article 50 Notice have not been agreed under the Royal Prerogative.  We of course argued this point in our “Defend Brexit” case but Lord Justice Hickinbottom ruled both that the Royal Prerogative did apply and also that it was used and so he claimed that our case (and thus the ruling of Speaker Bercow!) was “Totally Without Merit”!

Mr Justice Spencer on the other hand claimed that our case was “Totally Without Merit” because he claimed that the extension was not under the Royal Prerogative but instead was under the Statutory Instrument (passed under the EU Withdrawal Act 2018) which changed the “Exit Day” from 29th March! 

So here we have it! EITHER Lord Justice Hickinbottom is right and the extensions were made under Royal Prerogative and so Speaker Bercow’s ruling is “Totally Without Merit”; OR Mr Justice Spencer is right and the Brexit date was changed by statutory instrument and the Royal Prerogative has been excluded; OR we are right and the Royal Prerogative has been excluded and there was no Act of Parliament empowering an extension and so we automatically left on the 29th March!

In a Learned Article on the LSE website Robert Craig (who is a part-time lecturer in Public Law at LSE and is currently pursuing a PhD at Bristol University considering the role of the Royal Prerogative in the modern UK constitution) argues as follows:-

“… the reason why Queen’s Consent was not needed for EUNoWA (EU Notification of Withdrawal Act 2017) was arguably because the Supreme Court ruling meant that prerogative could not logically be affected by conferring a power to notify under Article 50. It is by no means clear that triggering the process and extending the process are legally equivalent just because they are encompassed in the same Treaty Article. They are not even in the same subsection. Notification was done under Article 50(2). Extensions are done under Article 50(3).

Indeed this exact, and crucial, distinction has very recently been explicitly confirmed by Lord Justice Hickinbottom in rejecting the English Democrats’ judicial review application on 19 August 2019. It must be noted that permission appeal decisions do not have the same status as formal Court of Appeal judgments, but it is the most recent and best evidence we have of the what the law is. Hickinbottom LJ drew a sharp legal distinction between the Miller case situation of triggering the Article 50 process and the quite different legal scenario of extending the Article 50 process.

In short, international agreements (including agreements as to extensions of time under article 50(3) are matters for the Government in the exercise of prerogative powers and although such powers can be displaced by Parliament this case is distinguishable from [Miller] because Parliament, in its various interventions into the withdrawal process or otherwise, has not arguably displaced those prerogative powers in respect of an extension of time under article 50(3). Indeed, Parliament has consistently made clear in the 2017 [EUNoWA] and 2018 Acts [European Union Withdrawal Act 2018], and especially clearly in the European Union (Withdrawal) Act 2019, that timing of withdrawal (including agreeing extensions to the withdrawal date under article 50) was and is a matter for the Government.

Hickinbottom LJ must be right. This decision can only be seen as highly persuasive that the legal basis for the power to extend the Article 50 process is a matter of prerogative power.

Incidentally, this judgment is also relevant to one possible reading of the Speaker’s ruling. EUNoWA conferred the power on the Government to notify the EU of the intention of the UK to leave the EU. It said nothing about extensions.

1. Power to notify withdrawal from the EU

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

On one reading of the Speaker’s ruling, it might be thought that EUNoWA was being interpreted as conferring a general statutory power on the government to notify and the power to extend. Even taken in isolation, this would be a startling reading of EUNoWA because the wording of EUNoWA says nothing about extensions – it only mentions notification. However startling that may be as one possible reading, as a matter of law the proposition that EUNoWA confers the power to extend is now untenable after the decision of Hickinbottom LJ.”

(The original and full article can be found here>>>

Proponents of the new Bill to stop No Deal face a significant dilemma over Queen’s Consent

In any case I respectfully suggest to both Judges that Speaker Bercow’s ruling is either “Totally Without Merit” or that they were both totally wrong to make such a ruling in our case as it clearly had considerable merit!


  1. This absolutely correct. I also came to the same conclusion when I read the same article earlier. It is either one or the other, but not both!

  2. This is a case which Bercow will twist to suit himself and to stop Brexit both Bercow and the remainer mps are willing to bend the rules to stop Brexit.


  4. Bercow is a massive TWAT. The sooner he is out the better ,I believe we have already left the EU why can no one prove this to the satisfaction of the 17.4 million people who voted to Leave

  5. I am always thought about this, thank you for
    putting up.

  6. I hope your findings have been relayed to JRM , Boris and team.
    Bercow had become and is being allowed to be a dictator and must be stopped and put in his place.

  7. Robin, I think there may be an error in the following paragraph, where you have used a double negative that appears to conflict with your arguement:

    "Speaker Bercow ruled that there was no effect on the Royal Prerogative which means that he ruled that no extensions to the Article 50 Notice have not been agreed under the Royal Prerogative."

    Shouldn't "...have not been agreed..." stated "...have been agreed..." instead?

  8. Robin can our case still be used ?

  9. Of course this is just cloaked in jargon to deceive the public. We actually left the EU on March 31st.

  10. Anthony Bright-Paul Please pass this to Sir John Redwood to be passed on to the Prime minister Boris Johnstone.

  11. Royal Prerogative is itself limited by "positive law", being the fundamental laws of the land. The use of prerogative is restricted, it can never be used to harm the realm, the country or the rights and liberties of the public. And neither can an Act of Parliament. The point of the EU is to destroy the realm, so technically neither prerogative or the sovereignty of parliament can subject the realm in any area, to the EU.

  12. Hi,
    Why don't you launch a court case against the Speakers Ruling? The Ruling, as you say contradicts a judgment in the High Court. If the legal position was that the law said black is black, the Speaker cannot rule black is white surely? The Speakers decision in India is challengable in law, so why not the UK?
    If such a case was won, then the Surrender Bill would disappear and Johnson would be free to leave with no deal as the previous law demands.
    What do you think?