COURT OF APPEAL REFUSES TO ALLOW THE DEFEND BREXIT CASE TO HAVE A HEARING

 

COURT OF APPEAL REFUSES TO ALLOW THE DEFEND BREXIT CASE TO HAVE A HEARING

Above are the images of the Order that I have just received, which disappointingly confirms that our case is not going to be allowed to have even a single hearing. (Apologies for the way it has reproduced on this blog!)

The tone of the reasons for the Order is more reasonable than the previous two Orders that we have had in this case. I do however find it interesting that this Judge has come out with yet another set of inconsistent reasoning as to why our case would not succeed.  In my view, as we have now had three different Judges, all of whom have given a different basis on which they are refusing the case.  Speaker Bercow had a yet further different view.  Between them they have vividly shown why this is a case that should have actually been properly heard.  Proper legal argument should have been listened to, so that the Court could have come to a proper reasoned decision.  That would have been the way that a Judicial Review decision would have been dealt with until very recently. 

What we have however uncovered here is, not only the extent of politically biased personal agendas within the Judiciary, but also a drastic deterioration in the general standards of fairness and of open justice in our country. This bodes very ill for the future of a country which once had one of the very best justice systems in the world. The English justice system was seen as the very model of the best system of the idea of the “Rule of Law”. 

I would say that although I do not know Lord Justice Davis, but he must mix with very different people to any that I meet or hear from on social media, since I have yet to come across anybody who thinks that it is right and proper that a Judge who has signed up to the European Law Institute could fairly hear a Brexit case or be considered anything other than biased on the issue of Brexit. 

In the circumstances I have now taken this case as far as it can possibly go in the England and Wales jurisdiction. 

I am continuing with our Application to the European Court of Human Rights on the basis that they would not give us a “public hearing”, the case was not dealt within a “reasonable time”, given its importance, and also that we did not get an “impartial” tribunal. 

I am also pursing the Courts to provide disclosure under the General Data Protection Regulations of the Ministry of Justice’s Case Summary on the front of the Court file. 

I have so far only encountered obstructionism, which suggests to me strongly that the Judges have been given a biased steer on this case by the Case Summary on the outside of the file before they even start to read the papers.  If this wasn’t so there would be nothing to hide!

What do you think?

English Democrats Appeal to the European Court of Human Rights

English Democrats Appeal to the European Court of Human Rights

I recently posted, by Airmail, the English Democrats’ Appeal to the European Court of Human Rights in Strasbourg.  This is the court which adjudicates on the European Convention of Human Rights.

Article 6(1) of that Convention says:-

“In the determination of his civil rights…everyone is entitled to a fair and public hearing within a reasonable time by an…impartial tribunal”.

Here is the text of the application that the English Democrats are issuing:-

Application to the European Court of Human Rights

The Applicant brought a case for Judicial Review regarding the implementation of Brexit in respect of the legal position of the UK and of the legal position of all citizens of the UK and, in particular, all those in England who voted to leave the European Union in the EU Referendum and of all “Persons” in the UK. The UK Government sought to get around Parliament by using the Royal Prerogative to extend the Article 50 notice period.     

The Applicant’s Article 6 rights were infringed by Orders made on 19^th June 2019 and on 19^th August 2019 and its domestic Appeal remedies have been exhausted (see the case papers).

The Applicant is a political party registered with the UK’s Electoral Commission and is also a “Not for Profit” company limited by guarantee registered with the English and Welsh Companies House.  It has legal personality.

The relevant Application was for a declaration that the Applicant and all the above were out of the European Union on the 29^th March 2019 by reason of the expiry of the UK’s Notice Period.  All the legal rights and obligations created by the European Union would therefore not apply to the Applicant nor any of the above and therefore the Application was determinative of the Applicant’s EU “civil rights and obligations”.  Since “Community Law” applies directly in the UK and other EU treaty obligations are incorporated into municipal law the Applicant’s civil rights and obligations under municipal law were affected as well.    

The Applicant’s Judicial Review Application was not dealt with in a timely manner, despite making Applications for it to be expedited.

On an important and urgent question such as this the Court should have dealt with this matter expeditiously which should have been within a matter of 10 weeks, which was the time that the court took to make its decision in the case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 which was a case which, although of constitutional importance, was not of equal constitutional importance to the Application made by the Applicant.

Further, despite the importance of the matter, the Court chose to deal with the matter at a time when the Applicant’s lawyer was absent from the country and to do so in such a way that, unless an Application for an Appeal was dealt with before the Applicant’s lawyer returned from holiday, the case would be dismissed without any hearing because the Court has adopted a procedural rule whereby Judges can declare that an Application for Judicial Review is “Totally Without Merit”, which has the effect of preventing an Applicant from having any hearing at all, let alone a “fair and public hearing”.  This Order is dated 19^th June 2019.

This is a case in which numerous very experienced lawyers, including a retired Court of Appeal Judge, the Rt Hon. Sir Richard Aitkins, and many Queen’s Counsel (Senior Barristers), Barristers and Solicitors had all opined that it was of strong legal merit, so the decision to classify this case as “Totally Without Merit” was legally wrong and seems to the Applicant to be a politically motivated and biased decision intended to prevent the Applicant’s case getting a public hearing.

In so far as Part 54 of the Civil Procedure Rules permits judges to deny applicants for judicial review the right to an oral hearing through the device of marking the application “Totally Without Merit” it is non-compliant with Article 6(1).

Despite the Court’s actions the Applicant did manage to get their Application for Permission to Appeal issued in the Court of Appeal within the time required.  That Application for Permission to Appeal has now been rejected and therefore the Applicant has now been denied any “fair and public hearing” of its Application in breach of Article 6(1).

The general context of this decision is that the Judicial Appointments Commission in England and Wales only allows the appointment of lawyers to become judges who can show “a life-time’s commitment to Equality and Diversity” and therefore its intention is that only Left-wing, Internationalist, Multiculturalist political activists can be appointed as judges.  In practice the JAC reports to the Cabinet Office and is not independent.  Its budget and personnel are largely determined by the Cabinet Office.  

JAC appointees are almost invariably in favour of the UK’s membership of the EU and opposed to the majority decision of the electorate in the UK’s EU Referendum.  People with such views are not “Impartial” on this question. 

In this case, the Lord Justice of Appeal, who finally prevented this case being heard in his Order dated 19^th August 2019, is an open advocate of Multi-culturalist “Diversity” and is personally opposed to the Applicant’s political position.  He is a member of the European Legal Institute whose avowed purpose is:- “To evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the Member States.”  It follows that on an Application to try to implement Brexit such as that brought by the Applicant, Lord Justice Hickinbottom is clearly not an “Impartial” figure. 

It was wholly inappropriate and non-compliant with Article 6(1) for a Fellow of the ELI to be assigned to hear a case touching upon the UK’s membership of the EU.  So far as the Applicant is aware no national of an EU Member State who is opposed to membership of the EU by his or her nation state has ever been appointed to be a Fellow of the ELI.

A judicial certification of “Totally without Merit” is a device to prevent the Claimant from being able to get any “fair and public” hearing in court.  This is therefore in breach of Article 6(1) of the European Convention of Human Rights: “In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time by an … impartial tribunal.”

The Applicant has been denied a “fair and public hearing”.  The matter has not been dealt with “within” a reasonable time; and the Tribunal was not “impartial”.  These are all serious breaches of Article 6(1).

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

---

[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).