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.
23rd April, 2019
FRANCIS
HOAR
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).
