UK Government’s Lawyers argue against our claim; English Democrats – v – The Prime Minister – Case No. CO/1322/2019

The UK Government’s Lawyers argue against our claim 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 the Government’s defence to our claim that the UK is Out of the EU.

It is drafted by their top man, Sir James Eadie QC. 

Sir James was also the same barrister who went so far over the top as to claim, in his Grounds of Resistance in the Gina Miller case, that it would be unconstitutional for the Court to even consider her claim!

Needless to say that approach failed at every hearing of that case!

Here is his effort to attack our claim:-

IN THE HIGH COURT CO/1322/2019
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
BETWEEN:
THE QUEEN
(on the application of)
THE ENGLISH DEMOCRATS
Claimant
-and-
(1) THE PRIME MINISTER
(2) SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
Defendants
__________________________________________________________

SUMMARY GROUNDS OF RESISTANCE

__________________________________________________________
 

INTRODUCTION

1. The Claimant invites the Court to declare that the UK’s withdrawal from membership of the EU took effect on 29 March 2019. Despite all the recent events, and all of the consideration of the question by Parliament, and despite the extensions agreed between the EU and the UK, the Court is thus invited to declare that Brexit has already happened. If the Claimant is right, the UK would have withdrawn from the EU by accident, directly contrary to the evident intention and belief of both Parliament (which has been debating and legislating in vain in the meantime) and the other Member States of the EU, with the European Communities Act 1972 remaining in force and without the necessary legislation to address withdrawal (particularly on a ‘no deal’ basis) having been brought into force. That would be a startling legal position indeed.

2. The target of the claim is the extensions of time agreed between the UK and the European Council under Article 50(3) of the Treaty on European Union (“TEU”). It is submitted that the claim is hopeless:

a. It is clear that there was power to seek and agree those extensions in the exercise of the Government’s prerogative power. The various statutory schemes relating to the withdrawal of the UK from the EU are premised upon, and expressly recognise, the continued power of the Government to seek and to agree extensions of time in relation to withdrawal under Article 50(3) TEU.

b. Parliament has acted on the basis of those lawful extensions and given effect to the extension of the withdrawal date beyond 29 March 2019. The date and time of withdrawal in domestic law was amended by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 (“the Exit Day Regulations”) and subsequently by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 (“the Exit Day No. 2 Regulations”). Those Regulations were made under, and as contemplated by, s.20 of the European Union (Withdrawal) Act 2018 (“the 2018 Act”).

3. This is therefore a further Brexit-related claim through which the Court is invited to engage in politics by another means: see the observations and citations in R (Wilson) v The Prime Minister [2019] EWCA Civ 304 at §56 per Hickinbottom LJ. The Court is invited to refuse permission, to certify the claim as totally without merit under CPR rule 23.12, and to award the Government their Mount Cook costs.

THE LEGAL CONTEXT

4. The process by which a Member State of the EU may withdraw from membership of
the EU is regulated by Article 50 TEU, which provides:

“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 the 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 asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”
 

5. The European Communities Act 1972 (“the 1972 Act”) was enacted by Parliament to give effect to the UK’s membership of the EU generally; and to give effect to all “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties” (s.2(1)). The 1972 Act remains in force.

6. Section 1 of the European Union Referendum Act 2015 (“the 2015 Act”) provided for a referendum on the question whether the UK should leave or remain a member of the EU. On 23 June 2016, it was decided by a majority of those who voted in the Referendum that the UK should leave the EU.
 

7. On 24 January 2017, the Supreme Court decided that primary legislation was required in order to authorise a notification under Article 50(2): see R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61 (“Miller”).
 

8. Subsequently, Parliament passed the European Union (Notification of Withdrawal) Act 2017 (“the 2017 Act”). Section 1(1) provides: “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.” This therefore provided the requisite legislative authority for the Prime Minister to notify the intention of the UK to withdraw from the EU under Article 50(2).

9. On 29 March 2017, the Prime Minister formally notified the EU of the UK’s intention to withdraw under Art 50(2) TEU. The European Council accepted the notification.

10. On 26 June 2018, the European Union (Withdrawal) Act 2018 was enacted. The 2018 Act makes provision for the repeal of the 1972 Act and for the retention in domestic law of, in broad terms, existing applicable EU law following withdrawal.
 

a. Section 1 provides that the 1972 Act is repealed “on exit day”. Section 1 is not yet in force.

b. Section 20 defines “exit day”. As enacted, it provided that:
 

“(1) …“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. (5) In subsections (3) and (4) “the Treaties” means the Treaty on European Union and the Treaty on the Functioning of the European Union.”

c. §14 of Schedule 7 to the 2018 Act (as enacted) expressly prescribed that any regulations made under s.20(4) to amend the definition of “exit day” were to be subject to the affirmative resolution procedure.

d. Section 13 of the 2018 Act prescribed a detailed system of Parliamentary control of approval of any withdrawal agreement agreed between the Government and the EU under Articles 50(2) TEU. In addition, under s.13, a withdrawal agreement cannot be ratified until an Act of Parliament has been passed making provision for the implementation of the withdrawal agreement.

11. Following a vote of the House of Commons on 14 March 2019 in favour of seeking an extension of the withdrawal period, the Government wrote to the President of the European Council on 20 March 2019 seeking an extension until 30 June 2019. On 21 March 2019, the Council agreed to offer an extension until 22 May 2019 provided that the withdrawal agreement was approved by the House of Commons before 29 March 2019, or to 12 April 2019 otherwise. On 22 March 2019, the Government agreed the extension offered by the Council. The terms of the formal agreement under Article 50(3) TEU are set out in European Council Decision (EU) 2019/476 of 29 March 2019 [2019] OJ L80 I/1 (“the Extension Agreement”).

12. On 27 March 2019, the Government laid before both Houses of Parliament draft Regulations under s.20(4) of the 2018 Act to amend the definition of “exit day” in accordance with the Extension Agreement reached on 22 March 2019. In accordance with §14 of Schedule 7, the Regulations were approved by resolutions of both Houses of Parliament that day. The Exit Day Regulations were made on 28 March 2019 and came immediately into force. Regulation 2 amended ss.20(1) and (2) of the 2018 Act in accordance with the terms of the Extension Agreement.

13. Shortly before the expiry of the Extension Agreement on 12 April 2019, Parliament enacted the European Union (Withdrawal) Act 2019 (“the 2019 Act”). Coming into force on 8 April 2019, the long title of the 2019 Act is “to make provision in connection with the period for negotiations for withdrawing from the European Union”.

a. The effect of s.1 of the 2019 Act was to require the Government immediately to introduce into the House of Commons a motion seeking approval for the Government to request a further extension under Article 50(3) TEU to a date agreed by the House of Commons: ss.1(1)-(3). Sections 1(4)-(5) then imposed a duty on the Government to seek the extension in the terms approved by the House of Commons. Such a motion was introduced on 9 April 2019, to seek an extension until 30 June 2019, and was passed unamended. The Government then sought an extension in accordance with s.1(4) of the 2019 Act.

b. Significantly, s.1(6) of the 2019 Act provides:
“Nothing in this section prevents a Minister of the Crown from seeking, or agreeing to, an extension of the period specified in Article 50(3) of the Treaty on European Union otherwise than in accordance with this section provided that the extension cannot end earlier than 22 May 2019.”
Thus, save for the requirement that no extension which ends before 22 May 2019 be agreed, the power of the Government to agree an extension under Article 50(3) of any date (whether or not that requested by the UK under s.1(4)), and to seek any other extension, is expressly preserved in s.1(6) of the 2019 Act.

c. Section 2 of the 2019 Act amended §14 of Schedule 7 to the 2018 Act, so as to alter the process by which any further regulations amending the definition of “exit day” to the negative resolution procedure.
 

14. On 10 April 2019, the Government agreed with the European Council a further extension under Article 50(3) until 31 October 2019, unless elections to the European Parliament are not held by the UK in which case the extension shall cease to apply on 31 May 2019 (“the Further Extension Agreement”). The terms of the formal agreement are set out in European Council (EU) Decision 2019/584 of 11 April 2019 [2019] OJL101/1.

15. On 11 April 2019, the Government made the Exit Day No. 2 Regulations, which came immediately into force. Regulation 2 amended ss.20(1) and (2) of the 2018 Act in
accordance with the terms of the Further Extension Agreement.

RESPONSE TO THE CLAIM

16. The Government negotiates and enters into international agreements in the exercise of prerogative powers: i.e. the treaty and foreign relations prerogatives: see eg Miller at §§54-55.

17. The Claimant’s case is dependent upon the assertion that the statutory scheme set out above has displaced the Government’s prerogative powers to negotiate and agree extensions of time to the withdrawal period under Article 50(3) TEU. The short answer to that contention is that the statutory scheme says no such thing; on the contrary, each of the relevant pieces of primary legislation is fundamentally inconsistent with it.

18. The 2017 Act authorised the Government to notify the EU of the UK’s intention to withdraw. It did not purport to address when the UK would leave, or to control any power to agree extensions of time. By the express inclusion within s.1(1) of a reference to Article 50, Parliament was recognising and acknowledging that it was, necessarily, for the Government to exercise its powers in relation to the withdrawal process in accordance with Article 50, including extensions of time under Article 50(3).

19. So far as concerns the 2018 Act:
 

a. Section 20 as a whole presupposes that the prerogative power to seek and agree extensions exists. Thus, s.20(3) expressly recognises that an extension might be agreed between the UK and the EU under Article 50(3) TEU, and s.20(4) makes provision for the Government to amend the definition of “exit day” by regulations. Parliament did not purport to control or limit the prerogative power to agree such extensions under Article 50(3). Rather, Section 20(4) restricts the power to make regulations amending the definition of “exit day” to circumstances where an agreement under Article 50(3) has already been reached, in order that the definition be aligned with the date of withdrawal under the Treaties. It is therefore evidently premised upon Governmental exercise of the prerogative already having occurred.

b. Moreover, where Parliament did intend in the 2018 Act to control or limit the Government’s prerogative powers in relation to the Article 50 process it did so expressly. Section 13 has the effect of preventing the Government ratifying any withdrawal agreement with the EU before it has been approved by the House of Commons and primary legislation has been passed to implement the agreement. That operates as a direct fetter on the Government’s ordinary treaty prerogative to negotiate and agree a withdrawal agreement, under Article 50, departing from the ordinary preservation of that prerogative in s.20(4) and (8) of the Constitutional Reform and Governance Act 2010. The absence of any similar control on the power to agree an extension under Article 50(3) in the 2018 Act is conspicuous.

20. So far as concerns the 2019 Act:

a. Section 1(6) recognises and preserves, in terms, the Government’s power to ‘seek and agree’ extensions of time under Article 50(3). That is the sole purpose of that provision.

2b. To the limited extent that Parliament intended to control or limit that prerogative power in the 2019 Act, it did so in express terms (eg in ss.1(4)-(5)); and then went out of its way to make clear (in s.1(6)) that otherwise the prerogative powers are preserved. 

21. There is no parallel or analogue with the situation in Miller. Unlike sending the notification of intention to withdraw under Article 50(2) – and on the assumption of irrevocability the Supreme Court proceeded upon – an extension of the UK’s period of membership of the EU preserves the existing legal position, including the rights and obligations of citizens, the sources and content of domestic law, and the constitutional arrangements of the UK for the period of the extension. It does not involve any constitutional or legal change, let alone one of the “major” or “fundamental” type which concerned the Supreme Court in Miller: at §§82-83. Where, as in this case, the exercise of the treaty prerogative does “not in any significant way alter domestic law”, including in relation to EU treaties and agreements, the Supreme Court accepted that the prerogative power existed: at §89, approving R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1994] QB 552 in this respect.

22. It is equally plain that an extension of the UK’s period of membership does not frustrate the purpose of any statutory provision:
 

a. An extension of time under Article 50(3) does not frustrate Parliament’s expressed intention in s.1(1) of the 2017 Act that the UK should withdraw from the EU. Parliament set no date by which that intention was to be effected: it provided only a power to notify under Article 50(2), which could be exercised at any time.
 

b. Section 20(1) of the 2018 Act, as enacted, gave a specific definition of “exit day” as 11.00pm on the 29 March 2019. However, that was evidently to reflect the fact that under the terms of Article 50 – given the date of the notification – the ordinary two year period would expire on 29 March 2019. In any event, and dispositively so far as this point is concerned, s.20 also made direct provision to enable and to regulate – in ss.20(3)-(4) and §14 of Schedule 7 – extensions of time which would alter the definition of “exit day”. It is therefore the Claimant’s position, that there is no power to agree an extension, which would frustrate the evident purposes of ss.20(3)-(4). The extension regulation powers would be denuded of any purpose or function. Parliament would have legislated in vain to permit regulations to be made to reflect an agreed extension of time under Article 50(3) if, as the Claimant asserts, only primary legislation could authorise such a step.
 

c. No assistance can be drawn from the anticipated repeal of the 1972 Act in section 1 of the 2018 Act. Section 1 is not in force, and the commencement of it was both tied in terms to the definition of “exit day” (as to which, see above)
and left by Parliament to be dealt with in regulations: s.25(4). The 1972 Act remains fully in force as an expression of Parliament’s continued intent. Any extension of time of the UK’s membership of the EU is wholly consistent with
the intention of Parliament as expressed in the 1972 Act. Again, it is the Claimant’s position which would frustrate the continued intention of Parliament by seeking to render the 1972 Act empty of effect without it having been repealed.

SIR JAMES EADIE QC
CHRISTOPHER KNIGHT
 

17 April 2019