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.

23^rd 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

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[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).