Our 2nd Article 50 case

2^nd Article 50 case

I set out below the letter which I have sent starting the legal process to bring our second Article 50 case.   

The aim of this case is to box in the UK Government into a No Deal Brexit.  

If the required undertakings are given then they will have legal force! 

If they are not given then we will know that Boris intends to stitch us all up in a version of Theresa May's terrible "Deal".

Mr Jonathan Stowell                                     

c/o Government Legal Department

Team B6

One Kemble Street

London WC2B 4TS

Dear Sirs

Matter: In the matter of a further Judicial Review on the legal basis of Brexit

Letter Before Claim

This letter is drafted under the judicial review protocol in section C of the White Book, which provides for a response within 14 days.

1.    Respondent: Our clients identify two defendants: the Prime Minister (or, if necessary, the First Lord of the Treasury), as the person with overall responsibility for Brexit policy and the Secretary of State for Exiting the European Union.

2.    Applicant: The English Democrats (Reg. No. 6132268) of Quires Green, Willingale, Ongar, Essex, CM5 0QP, for and on behalf of the 15,188,406 voters in England who voted to Leave the European Union in the June 23^rd 2016 referendum.

3.    The details of the Applicant’s legal advisers, if any, dealing with this claim:-

Tilbrook’s Solicitors, of Quires Green, Willingale, Ongar, Essex, CM5 0QP

4.    The details of the matters being challenged:-

Any further purported non-statutory Extensions or Revocation of the United Kingdom’s notification to Leave the European Union given under Article 50 of the Lisbon Treaty.

5.    The details of any Interested Parties:-

Every person in England and in particular the 15,188,406 voters in England who voted to Leave the European Union in the 2016 referendum.

6.    The Issues:-

Following the Judgments of the High Court, of the Court of Appeal and of the Supreme Court in R (on the application of Miller and another) – v – Secretary of State for Exiting the European Union [2017] UKSC5 and the consequent enactment of the European Union (Notification of Withdrawal) Act 2017, there is no discretionary prerogative power vested in Her Majesty’s Government to agree any extension to the Article 50 Notice, or to Revoke the said Notice without a further express Act of Parliament to authorise such Extension or Revocation. 

Accordingly any further purported Extensions or Revocation are also void and of no effect. 

7.    The details of the action that the Defendant is required to take:-

What is sought from the Respondents is:

(i)             An undertaking that there will be no further attempts to purport to vary the Notice given under the said EU Notification of Withdrawal Act 2017 except pursuant to an express Act of Parliament; and

(ii)           The formal admission that the Government admits that any such purported extension of the notice period or revocation would be legally invalid; and

(iii)         A formal admission that, in the absence of any further statute, that the UK’s departure from the European Union shall go ahead as currently notified on the 31^st October 2019. 

8.    ADR proposals:-

N/A

9.    The details of any information sought:-

Not applicable.

10.The details of any documents that are considered relevant and necessary:-

          Not applicable.

11. The address for reply and service of all documents:-

Tilbrook’s Solicitors of Quires Green, Willingale, Ongar, Essex, CM5 

 0QP

12.  Proposed reply date:-

14 days from the date hereof.

Yours faithfully

Tilbrook’s

IRELAND THREATENS BREXIT DEAL

IRELAND THREATENS BREXIT DEAL

Two weeks ago the Foreign Minister of the Irish Republic made the entirely credible threat that, if the Irish Government didn’t get what they wanted in keeping an open border with Northern Ireland, then they would veto any proposed EU trade agreement with the United Kingdom. 

The reason that such a threat is entirely credible is that for any EU trade agreement to be ratified it has to go through the process of ratification, not only by the EU institutions, but also by all 27 remaining Member States of the EU. 

This is part of the reason why the EU has been so very slow over the years at entering into trade agreements.  In the case of the trade agreement with Canada, the vast majority of terms were agreed relatively quickly, but the ratification was then held up for years because the Belgium Walloons were being difficult about an obscure point and until they agreed the Belgium state could not ratify the agreement. 

We may also have difficulty with the Walloons, who are, of course, notorious about being difficult about almost everything.  There has also been a direct threat from Spain of vetoing any EU trade agreement with the EU unless they get what they want over Gibraltar. 

Then in terms of troubles ahead there is the problem that Germany is currently politically rudderless. Angela Merkel, the Chancellor for so many years is no doubt focussing all her efforts on internal political considerations (and her own future!) rather than thinking about issues relating to Brexit!

As things stand under Article 50 we are out of the EU in March 2019.  That is just 16 months away!

Even if we were already agreed on almost every aspect of the trade agreement negotiations that would be an almost impossibly short period to succeed in getting all the EU institutions and also all the Member States to all ratify the agreement. 

As it is, we haven’t even begun the trade negotiations because of the EU’s approach to negotiation - that the divorce package must be agreed before any trade negotiations can begin.  This negotiating approach was always intended to minimise the British Government’s negotiating position. 

The EU will be left desperately short of money as a result of us, one of its major cash cows, leaving the EU which is why they are trying to get us to agree to pay a vast ransom before they will even agree to discuss any trade deal, so that we cannot use our financial position to extract any concessions from them.

In addition to our financial position our Government’s negotiating team throughout that the question of the EU migrants who are here would be helpful.  In many cases they are sending back to their home countries a significant proportion of what they are earning, plus child benefit and other remittances which help keep their home countries financially afloat. 

Our negotiating team also thought that it would help us that our security services are more effective and sophisticated than most of the rest of the 27. 

All of these issues seemed to give potentially strong negotiating positions.  That is why all of which points the EUs current negotiating stance is intended to strip away from us!

When you couple all of this with the relative weakness and incoherence of Mrs May’s Remainer dominated Government - it has never looked very likely that she was going to be able to deliver a good deal on trading terms between us and the EU countries!

If the Irish deliver on their threat it would be politically impossible (not to mention - politically suicidal!) for any British Government to negotiate away the integrity of the United Kingdom, let alone a Conservative and Unionist Prime Minister whose very Party, as it currently stands, was formed on the question of Ireland in 1922 when Conservative and Unionist MPs came together in the original 1922 Committee to vote to withdraw from Lloyd George’s National Coalition over the question of Ireland. 

There is also the electoral dynamic in the House of Commons which requires the support of Arlene Foster’s Democratic Unionist Party who would not agree to what Ireland is asking for anyway.  So Mrs May’s Government has even less ability to agree what Ireland is demanding than any other British Government would be able to!

So it would appear that no deal is really the most likely outcome. 

If Mrs May’s Government are really sensible it would be currently planning for that and certainly not parting with any English Taxpayers’ money to buy the possibility of having trade negotiations, when those trade negotiations are clearly going to go nowhere in the long run.

Brexit, membership of the EU and properly implementing the referendum decision combine in a cluster of issues which are very important to a lot of people.  They are perhaps more important than traditional party loyalties. They also cut across the line of the political spectrum represented by the Post War two party system British Establishment Parties. 

Therefore we have a real prospect that the Remainiac manoeuvres that we see going on in Parliament may lead to a smash for the Establishment. That means that there is to a real prospect on re-alignment of the political spectrum, hopefully more in accordance in delivering what ordinary people really want out of politics.  In my view, that is patriotism; coupled with welfare for our people; control on immigration; coupled with higher wages for our people; support for traditional values; an end to political correctness; integration not multi-culturalism; a land in which there is room for difference and innovation; self-improvement without the dead weight of bureaucratic “Equality and Diversity” quotas.  In short an England that would truly make you proud to be English!

As against that majority view we do, on one end of the spectrum, have perhaps no more than 25,000 corporate globalists supporting the Tory Party, but they are armed with vast resources and control of big business and much of the print media.  On the other end there are certainly no more than 600,000 internationalist, socialist, statists supporting Labour again armed with influence in the state hierarchy, academia , teaching, Social work and in the media - especially the BBC.

REMAINERS ARE TRAPPED BY THE RESULT OF THE GINA MILLER CASE

REMAINERS ARE TRAPPED BY THE RESULT OF THE GINA MILLER CASE

One thing that is all too obvious when trying to deal with any part of Government these days is the striking degree of incompetence.  This may well be the result of the selection for jobs by multi-culturist, PC tokenistic, tick-boxing rather than by trying to select the best people for the job?

There is also, of course, the vast and casual waste of taxpayers’ money! 

One of the less remarked upon things is the huge volume of unnecessary, overly prescriptive, complicated and downright ineffective legislation that Parliament passes.  It seems to be all too prevalent that the qualification for being in our legislature is to be utterly incompetent in dealing with any matter relating to the Law!

I remember a few years Lord Phillips of Sudbury, the Lib Dem Peer who had been a high quality solicitor in private practice, retired from the Lords saying that he thought the whole thing was pointless when our State is now passing over 10,000 pages of legislation every single year?

The result of this deluge of legislative verbal diarrhoea is that it is no longer possible for anyone to know the law, let alone for any citizen to know where they stand as against the State.  The whole legal system has been swamped and is a muddle. 

In a way nothing is better as an example than the latest twittering amongst the twitterati about whether Article 50 of the Lisbon Treaty could be revoked and thus keep the UK within the EU and block the EU referendum.

This is a typical example of our political class’ incompetence. There are of course two bodies that have jurisdiction on deciding this. One is Parliament.  All the commentators who are Remainers were gleeful about Gina Miller’s case being taken up to the Supreme Court where there was a ruling that Parliament had to legislate in order for the Government to be legally able to serve the Article 50 notice (https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf .  Bizarrely they are now claiming that Parliament by mere resolution could overrule the effect of that Statute! This is a basic error, not only of law, but of the constitution, since it is elementary that no Parliamentary resolution can override a statute.

In the circumstances the only way in which Parliament could overturn the Article 50 notice Act (European Union (Notification of Withdrawal) Act 2017)  would be by a further Act of Parliament. 

So we have the amusing and delightful situation where Remainer MPs are trapped by the Miller case, whereby they cannot undo the Article 50 Notice at this end of the process without a further Act of Parliament.

Realistically this is politically impossible and would probably be ineffective in any case for reasons which I will explain below. 

The other jurisdiction and body which would determine whether a revocation of the Article 50 Notice was valid is the European Court of Justice.  Whatever the EU Commissioner might think, or the Council of European Union Governments or the EU Parliament think, the final word would be with the European Court of Justice.  That decision would probably take 5 years during which the situation of the UK would be in a permanent state of uncertainty. 

This Twitter stream has all been brought on by the Brexit Secretary, David Davis, confirming what was logically obvious, which is that the default position on whether there is a deal is that there is no deal. 

Given that the EU has set itself up to be as difficult as possible in this negotiating process, they always made it very likely that there would be no deal, but the Remainers seemed to think that they were going to have some opportunity to decide whether or not whatever was offered was going to be sufficient.  David Davies confirmed that in the event that Parliament rejected whatever deal was offered, then the effect would be that there was no deal.

Since David Davis is likely not to be bringing back very much in the way of a deal anyway we now have massive inertia tending towards no deal from both the EU side and from the UK side.

Fortunately the effect of no deal isn’t at all what the Remainers are saying.  It is simply that we go into the normal world trade on free trading terms and on a WTO basis, just like most of the other countries that trade perfectly successfully with the EU. 

The EU for their part also go onto the same WTO terms with us.  Since the balance of trade for the last 30 years has been more or less constant in their favour it is right to say that the EU will lose more than we will.  Our Government receipts from their payment of tariffs is likely to be much greater than the EU’s receipts from our tariffs.  Our profligate and wasteful Government might even be able to pay its way with a balanced budget, at least for a little while, based upon these extra receipts!

A FLOCK OF REMAINIST LAWYERS INDULGE IN ANTI-BREXIT PACK GESTURE LETTER WRITING!

A FLOCK OF REMAINIST LAWYERS INDULGE IN ANTI-BREXIT GESTURE LETTER WRITING!

My attention was caught by the report of this letter in the Independent. It is instructive to look at the list of the thousand or so lawyers who have signed a letter addressed to the Prime Minister (saying that the EU referendum result is merely “Advisory” and not “legally binding”). The list includes all the usual suspects: internationalists, social justice campaigners and globalist Remain camp lawyers, etc., who are to a “person” anti-English.

Those who read the letter carefully, certainly those with legal training, will have noted that the letter writers are careful not to overstate their case whilst appearing to suggest that the result is “Advisory”.



In fact it is constitutionally obvious that the referendum is “Advisory” in the British Governmental system. This is a system in which the democratic vote of the People in a General Election and the election of Members of Parliament is technically largely “Advisory”. The basis of the appointment system for Ministers is technically that of the Royal Prerogative. They are technically Royal Appointments to deal with matters of the Royal Government.

Since Sir Robert Walpole, it has been necessary for the Prime Minister to retain the confidence of the House of Commons as well as the Monarch. As the balance of initiative has tipped toward the House of Commons and away from the Monarch, political power has come more into the hands of an “Executive” based, as it is in our current constitutional arrangements, within the legislature.

Whilst Democracy generally therefore has been “Advisory” to the British constitutional construct of the “Crown in Parliament”, nevertheless it has been so long since a Monarch or Government thought it could ignore such “Advisory” democracy that many commentators have forgotten that it is constitutionally possible.


It is therefore “deceptive”, to say the least, for these “Lawyers” to even imply that the referendum’s result could be treated as not being politically, morally or constitutionally in effect binding.

I was also amused to read their comment that “there is evidence that the referendum result was influenced by mis-representations of fact and promises that could not be delivered”. Many of those misrepresentations and promises were those of the Remain side!

The idea that the result was “only narrowly in favour of Brexit” is also a ridiculous proposition especially in England where, if you remove Gibraltar from its inclusion in the English figures (in most of the published results), the majority in England was almost 2 million voters. In any case more people voted for Brexit than have ever voted for any British Government!

It is equally fanciful for these “Lawyers” to claim that the positions of Scotland, Northern Ireland and Gibraltar require “special consideration” since their populations did not vote to leave the EU. The only special consideration that they should get is that they will either have to leave the EU as the English have voted to do so, or Leave the UK. They will not be able to Remain in both Unions.

The silliest point of all of course is the idea that the activation of Article 50 requires a parliamentary vote. The constitutional position is simple. The Prime Minister, on behalf of the Queen and in exercise of the royal prerogative has an unfettered ability to trigger the kind of Notice that Article 50 of the Lisbon Treaty requires. The only fora in which there could be any argument about the validity of the Article 50 Notice is within the EU institutions. Provided the Council of Europe are happy that a proper Article 50 Notice has been given, then the process of Exit will commence. That is whatever a relatively small proportion of the total number of lawyers in the UK may think!


For information, I would suggest that the number of barristers, solicitors, in-house lawyers and advocates in Scotland, Northern Ireland and England and Wales would probably exceed 300,000. As the word of “Lawyer” is rather a vague term, the total number of “Lawyers” may well exceed 500,000, of which it would appear that only approximately 1,000 were sufficiently ideologically committed Remainers to sign this letter!


Here is the text of the “Lawyers” letter:-


9 July 2016

Dear Prime Minister and Members of Parliament

Re: Brexit

We are all individual members of the Bars of England and Wales, Scotland
and Northern Ireland. We are writing to propose a way forward which
reconciles the legal, constitutional and political issues which arise
following the Brexit referendum.

The result of the referendum must be acknowledged. Our legal opinion is
that the referendum is advisory.

The European Referendum Act does not make it legally binding. We believe
that in order to trigger Article 50, there must first be primary
legislation. It is of the utmost importance that the legislative process
is informed by an objective understanding as to the benefits, costs and
risks of triggering Article 50.

The reasons for this include the following: There is evidence that the
referendum result was influenced by misrepresentations of fact and
promises that could not be delivered.

Since the result was only narrowly in favour of Brexit, it cannot be
discounted that the misrepresentations and promises were a decisive or
contributory factor in the result.

The parliamentary vote must not be similarly affected. The referendum
did not set a threshold necessary to leave the EU, commonly adopted in
polls of national importance, e.g. 60% of those voting or 40% of the
electorate.

This is presumably because the result was only advisory. The outcome of
the exit process will affect a generation of people who were not old
enough to vote in the referendum.

The positions of Scotland, Northern Ireland and Gibraltar require
special consideration, since their populations did not vote to leave the EU.

The referendum did not concern the negotiating position of the UK
following the triggering of Article 50, nor the possibility that no
agreement could be reached within the stipulated two year period for
negotiation, nor the emerging reality that the Article 50 negotiations
will concern only the manner of exit from the EU and not future economic
relationships.

All of these matters need to be fully explored and understood prior to
the Parliamentary vote. The Parliamentary vote should take place with a
greater understanding as to the economic consequences of Brexit, as
businesses and investors in the UK start to react to the outcome of the
referendum.

For all of these reasons, it is proposed that the Government
establishes, as a matter of urgency, a Royal Commission or an equivalent
independent body to receive evidence and report, within a short, fixed
timescale, on the benefits, costs and risks of triggering Article 50 to
the UK as a whole, and to all of its constituent populations.

The Parliamentary vote should not take place until the Commission has
reported. In view of the extremely serious constitutional, economic and
legal importance of the vote either way, we believe that there should be
a free vote in Parliament.

Yours sincerely

PHILIP KOLVIN QC

And 1053 others

(Here is a link to the original in the Independent>>>
http://www.independent.co.uk/news/uk/politics/in-full-the-letter-from-1000-lawyers-to-david-cameron-over-eu-referendum-brexit-legality-a7130226.html)

BREXIT – THE EU AND UK LEGAL AND CONSTITUTIONAL PROCEDURES

I was recently asked to do an article for the Solicitors Journal which is a highly respected Legal magazine. The brief was to set out my views on Article 50 and on the situation. Also as George Osborne had just said the UK can invoke Article 50 when it feels it is best placed to, to comment on that suggestion and the Brexit situation overall.


Here is my article. What do you think?

BREXIT – THE EU AND UK LEGAL AND CONSTITUTIONAL PROCEDURES

There are two constitutional legal procedures required to put into effect the democratically expressed Will of the People to Brexit.

One is the external requirement, under EU constitutional law, of activating Article 50 of the Lisbon Treaty. Article 50 is simple to activate and it is entirely in the hands of the UK as a Member State to do so in accordance with UK constitutional arrangements. The “Royal Prerogative” gives that power to the Prime Minister.

Once Article 50 has been activated there is a compulsory 2 year period of negotiation managed by the EU Commission but if no agreement is reached, then the UK’s membership of the EU lapses automatically. (Bad luck Scotland, but nice try Nicola Sturgeon!).

The other constitutional procedure is internal. There must be a substantial repeal by the UK’s Westminster Parliament of the European Communities Act 1972 (perhaps with some saving provisions).

If Scotland held the threatened second Independence Referendum and voted to go, a third possibility would arise because if the UK, which is the EU Member State was dissolved then all parts of the former UK State would be automatically outside of the EU.

Over the course of the next few months up until mid-September we will witness the pattern of events revolve again around the machinations of the British Political elite. The critical political challenge for Brexit to actually occur is the Conservative Parliamentary Party’s decision as to which two contenders for leader will go onto the ballot for all Conservative Party members to vote on.

If Boris Johnson is on the ballot then it is a racing certainty that he will win the leadership and become the next Prime Minister.

If the plotters against him succeed in keeping him off the ballot paper, then it becomes doubtful as to who would win and it will then be still more doubtful as to what happens about Brexit. The future of the Conservative Party would then also have been put in doubt because all its Brexit voters will be absolutely furious and electorally unforgiving.

In the meanwhile, legislation based upon the EU has lost the privileged status which Lord Justice Laws gave it in his judgment against the Metric Martyrs in 2002. Laws LJ held that the Referendum in 1975 gave the People's democratic consent to the European Communities Act 1972 and thus conferred special status upon it as a constitutional statute. That consent has now been removed and with it the special status of all that strand of law!


Here is a link to the article which the Solicitors Journal wrote partly based upon my comments >>> http://www.solicitorsjournal.com/news/public/administrative-and-constitutional/26932/uk-decides-when-trigger-article-50-not-eu-say-le