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Here are the draft Grounds:-
IN THE HIGH COURT OF JUSTICE
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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
