QC explains why our Brexit Case should be heard
Our excellent QC, Mr Anthony Speaight QC, has written a carefully (and silkily!) worded Skeleton Argument to persuade the single Lord Justice of Appeal, who will be looking at our paperwork in the next few weeks, to give permission for our case to be heard.
Mr Speaight has worked carefully to stress the point that Mr Justice Spencer’s decision is clearly wrong.
I think he has done a very good job in focussing the arguments on points which should appeal to any fair-minded judge, even one who perhaps voted Remain!
Here is the text of the Skeleton Argument:-
CLAIMANT’S SKELETON ARGUMENT for APPEAL
- The authors of this skeleton recognise that a finding of “totally without merit” by a High Court judge is an unpromising beginning for any submission, but for the reasons herein submit that the Claimant has an argument which is throughly arguable, and that, indeed, there are clear positive public interest reasons for it being heard.
- The issue between the parties is this:-
Is the power to agree extensions of time under article 50,
(a) possessed by the Government as a prerogative power? – which is the Defendant’s case; or
(b) one requiring parliamentary sanction? – which, by analogy to the power to give notice of withdrawal per R (Miller) v Secretary of State  AC 61, is the Claimant’s case.
- Art 50 of the Treaty on the European Union (‘TEU’) provides:-
“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.”
Thus for an extension to the UK’s notice period to be effective in EU law there must be agreement on the part of the UK. This case concerns the administrative action of the UK in proferring, or making, that agreement.
- To date there have been two extensions under art.50(3):
22nd March 2019 an extension to 22nd May 2019 provided the House of Commons approves the Withdrawal Agreement by 29th March 2019; or otherwise until 12th April 2019
11th April 2019 an extension to 31st October 2019.
- This claim is directly concerned with the first of the two extensions which to date have been agreed between the UK and the EU, namely that on 22nd March 2019; but the arguments respectively presented by the parties will be equally applicable to the law in respect of any future extension – for which reason there must be some general public interest in a Court decision.
- The Defendant argues:-
“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.”
- The Claimant would accept that there was parliamentary sanction for the second extension on 11th April: that is because the European Union (Withdrawal) Act 2019, which was passed on 8th April 2019, mandated the Government to seek an extension under art 50(3). However, the Claimant disputes the Defendant’s contention in respect of the first extension on 22nd March 2019, on the grounds that:-
(1) No statute in force as at 22nd March 2019 was premised upon, or expressly recognised, a prerogative power to agree extensions.
(2) Even if (contrary to (1)) there was such a statutory premise or recognition, that could not create a prerogative power, if as a matter of law none such existed.
Ground of dispute (1): no statute recognised a prerogative power to extend
- The Summary Grounds of Resistance mention the following statutes which were in force as at 22nd March 2019:-
European Communities Act 1972
European Union Referendum Act 2015
European Union (Notification of Withdrawal) Act 2017
European Union (Withdrawal) Act 2018
Of this list, the Acts of 1972, 2015 and 2017 can be eliminated immediately: there is no suggestion that they contain any allusion, express or implied, to a power to extend the withdrawal period.
- The question here is whether the Act of 2018 contained any recognition of a prerogative power to extend. The feature of the Act on which the Defendant relies is the power in s.20(4) conferred on a Minister of the Crown by regulation to,
“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”
This statutory instrument is subject to the affirmative resolution procedure. In the absence of the exercise of that power “exit day” is defined in the Interpretation section, s.20(1):
“ ‘exit day’ means 29 March 2019 at 11.00pm”
- It is accepted that this envisages that circumstances may arise such that 29thMarch 2019, which was, of course, the date exactly 2 years after the giving of the notification of withdrawal, is not, after all, the end date of the withdrawal period. That could happen in more than one way. The first such way described in art 50 is if a withdrawal agreement enters into force at an earlier date. The second is if there is a unanimous decision to extend in agreement with the UK. But by recognising the possibility of that second, unanimous European Council decision, route, the Act of 2018 neither expressly states, nor by necessary implication implies, anything as to the mechanism by which the UK Government can be authorised to give the UK agreement component of, or precondition for, the unanimous European Council decision. The Act of 2018 is silent as to that mechanism.
- To make the same point in a slightly different way, the Act of 2018 is as consistent with the UK Government requiring parliamentary authorisation before agreeing to an art 50(3) extension, as it is with the UK Government possessing a prerogative power so to agree. On any analysis the ministerial power to change the date meant by “exit day” involves a number of steps. Working backwards from the end of the process, the final step is both Houses of Parliament’s affirmative resolution. The penultimate step is the minister making a draft statutory instrument. Before that there must have been the European Council decision to extend. It is perfectly consistent with the 2018 Act that prior to the European Council meeting there must be parliamentary authorisation for the UK agreement to the extension.
- That leaves for consideration the last statute mentioned by the Defendant in the Summary Grounds of Resistance, namely the European Union (Withdrawal) Act 2019. As has already been accepted, this may be said to confer a statutory power to agree an extension: it would otiose and nonsensical to mandate the Government to ask for an extension, if this did not connote the power to accept an extension if the request were granted. But if the Claimant’s submission is correct that there was no prerogative to agree the extension on 22nd March, this subsequent development could not cure unlawfulness in the 22nd March extension. The Claimant says that if the March extension was not effective, and so the withdrawal notification took effect on 29th March 2019, then the only way by which EU membership could continue or be restored would have been by a request to rejoin under art 50(5), which plainly has not occurred.
Ground of dispute (2): if Parliament proceeded on a mistaken view that does not alter the pre-existing common law
- Just as Parliament has an unlimited power to legislate to change the law, it is also within the competence of Parliament, with binding effect, to enact a declaration as to what the law is to be taken to be or to have been. But save when legislating in that way, Parliament cannot authoritatively interpret the law: that function belongs to the courts. If there is merely an inference that Parliament considered the law to have been ABC, that is not sufficient to make ABC the law, if the courts hold that the law had, in fact, been DEF. A parliamentary declaratory enactment must unambiguously be legislation constituting just that.
- In R (W) v Lambeth Council  EWCA Civ 613,  2 All ER 901 at  Brooke LJ, delivering the judgment of the Court, cited with approval this passage from “Bennion on Statutory Interpretation”:-
“Where it appears that an enactment proceeds upon a mistaken view of earlier law, the question may arise whether this effects a change in that law (apart from any amendment directly made by the enactment). Here it is necessary to remember that, except when legislating, Parliament has no power authoritatively to interpret the law. That function belongs to the judiciary alone. … A mere inference that Parliament has mistaken the nature or effect of some legal rule does not in itself amount to a declaration that the rule is other than what it is. However, the view taken by Parliament as to the legal meaning of a doubtful enactment may be treated as of persuasive, though not binding, authority.”
The judgment proceeded to discuss dicta of Lord Reid in two cases, including IRC v Dowdall  AC 401, where at p.421 he said,
“It may well be that these paragraphs show that Parliament was under a misapprehension as to the existing law at the time, but it does not necessarily follow that if Parliament had been correctly informed it would have altered the law.”
- Therefore, even if (contrary to our submission) there is to be discerned in the 2018 Act an assumption of the existence of a prerogative power to agree an extension, that does not suffice to create such a prerogative as part of the common law, if such has not, in fact, been the common law.
Is there a prerogative to agree an extension at common law?
- Whilst the emphasis of the Summary Grounds of Resistance is on the argument that statutes have recognised a prerogative power, there is one paragraph which presents an a priori argument: here the Defendant resists the analogy drawn by the Claimant with Miller on the ground that an Art 50 extension preservesthe existing legal position, whereas withdrawal under art 50 effects a “legal and constitutional change”.
- But the correctness or otherwise of that argument depends on which way one looks at “the existing legal position”. The 22nd March extension can quite as properly be analysed as changing the existing legal and constitutional position, since:-
- By the 2017 Act Parliament authorised the giving of an art 50 notification whose effect, in the absence of a new act intervening, was that after 29th March 2019 there would no longer be, in the words of s.2(1) of the 1972 Act “rights, powers, liabilities, obligations and restrictions ... arising by or under the Treaties”.
- The UK’s agreement to the 22nd March extension changed that position on 30th March 2019 and subsequent days.
- For present purposes the Claimant need do no more than show that its case is arguable. It was held in Miller that the loss of the source of law, constituted by EU law, was a sufficiently fundamental legal change as to be outside the scope of the prerogative (see ). It must surely be properly arguable that the restoration of the EU source of law in a period when otherwise it would not have existed is also a fundamental legal change.
- Further citation from Miller herein is unnecessary, as the Claimant shares theDefendant’s analysis of the ratio of Miller – the Defendant summarises this as that the treaty prerogative is exercisable where the exercise will “not in any significant way alter domestic law” . But it is worth observing that Miller expressly states that the initial incorporation of EU law in 1972 was a significant constitutional change on a par with withdrawal from the EU.
- It is useful to think in terms of the water conduit analogy of which the Supreme Court spoke ( referring to Professor Finnis). One can visualise a water pipe running into our property from a public main under the street. On this pipe there are two taps: there is a stopcock in the highway by which the branch to our property can be turned off; and there is another tap within our property by which we can close the water pipe. In this analogy s.2 of the 1972 Act is the tap on our own property, and art 50 TEU is the stopcock in the highway. If one turns off either tap, the flow of water stops. If the UK ceases to be a member of the EU under EU law in accordance with the TEU there are no rights, liabilities etc arising from time to time under the Treaties, so there is nothing coming our way to which s.2 of the 1972 Act can give effect. And if the 1972 Act is repealed, then no matter what rights arise under the EU treaties, they will not be given effect by domestic law. So the conduit can be turned off at either end.
- The Claimant’s essential submission here is that the turning on or off of the water tap at either end of the conduit is an action of constitutional significance which “in a significant way alters domestic law”.
- It may, of course, be objected that there is a significant difference in the length of the period of time affected by the expiry of an art 50 notice, on the one hand, and the 22nd March extension on the other hand. In the first case, one has to envisage at the minimum years before an application by the UK, if it were to be made, would be likely to lead to the restoration of EU law, whereas the duration of the March 2019 extension was no more than 2 months. But the anticipated duration does not alter the profundity of the legal difference between the EU membership and non-membership, or the application of EU law and its non-application: this is the binary distinction between in and out, or on and off.
Is this issue one of domestic law or EU law?
- The Claimant’s argument is that, in terms of the conduit analogy, there was a defect in the extension which affected the EU end of the conduit. That is to say, there was a defect impinging on the element in the operation of art 50(3) contained in the words,
“... in agreement with the Member state concerned ...”
- It is not doubted that the UK presented a formal agreement. This is recorded in recital (12) of the European Council Decision:-
“(12) .... However, as set out in the letter from the Permanent Representative of the UK to the European Union , Sir Tim Barrow, of 22 March 2019, it has agreed, in accordance with Article 50(3) TEU, to the extension of the period referred to in that Article ...”
- The meaning and effect of the TEU may be regarded as a matter of EU law. Viewed from the perspective of the European Council the correct procedure was followed. On the other hand, there is a lawfulness question, which is one of domestic law, as to the lawfulness of the domestic UK decision to present the “agreement” in the letter of the Permanent Representative: that is to say, the issue is as to the administrative, or public law, decision to make or present, that agreement, and to the administrative, or public law, action implementing that decision. Just as the original decision to withdraw is recognised by EU law to be one to be taken by a member state “in accordance with its own constitutional requirements” (art 50(1)), so, too, surely, the agreement component of an extension should be in accordance with the constitutional requirements of the state concerned.
- The Claimant seeks declaratory relief. There may be argument whether the form of declaration sought goes too far. The Claimant may, or may not, be too ambitious in its contentions as to the consequences of the public law unlawfulness. But discussion of the formulation of the remedy is something which may more properly be addressed later, if permission for judicial review is granted. The Summary Grounds of Resistance do not suggest that an argument as to the appropriateness of the wording of the declaration sought is a reason for refusing permission for judicial review.
The learned judge’s error
- The learned judge commences his reasons:
“The nub of the claim is the assertion that the UK left the EU at 11pm on 29th March 2019 by operation of s.20(1) of the European Union (Withdrawal) Act 2018 and the definition of ‘exit day’....”
With respect to the learned judge this proposition is neither the nub of, nor any part of, the Claimant ‘s argument. Nor did the Defendant understand that proposition to be the Claimant’s case.
- This proposition would, indeed, have been a hopeless proposition for a number of reasons:-
- The main operative sections of the 2018 Act were not yet in force in March 2019, and still are not in force.
- The expression “exit day” in the 2018 Act is, in a sense, something of a misnomer. A more accurate expression could have been “commencement day”: “Exit day” is a term of art used by the Act to identify the day and time when the main operative sections have effect: see the operative ss.1, 2, 3, 4 and the definition in s.20.
- The 2018 Act does not purport to effect the UK’s exit from the EU. Nor, indeed, could a domestic statute. The UK’s membership of the EU is a matter of international law and EU law achieved by the UK’s ratification of a treaty; and the withdrawal will be effected in accordance with the TEU. The 2018 Act’s purpose is complementary to that exit, by, in the above analogy, turning off the tap at the UK end of the conduit, and replicating almost all of the law which had flowed down the conduit.
- The learned judge proceeds to say that Parliament plainly intended the definition of “exit day” to be capable of amendment, and that the definition has been lawfully amended by statutory instrument: that is not in dispute. Finally, the learned judge says that the 2019 Act lawfully authorised the Prime Minister to seek an extension: it has been accepted above that this did authorise the request for, and the agreement to, the April extension , that is the 2nd extension.
- The Claimant, however, respectfully disagrees with the final statement by the learned judge:
“... the extension to 31st October 2019 effected by the statutory instrument laid before Parliament at 4:15pm on 11th April 2019.”
The extension of the withdrawal period was effected by the European Council Decision. It was not, and could not have been, effected by a UK statutory instrument.
- It is unfortunate, and disappointing for the Claimant, that following this misapprehension and the making of a “totally without merit” order, it will not have the normal opportunity to seek to explain and justify the arguability of its case at an oral hearing of a renewed application for permission.
- Following receipt of the learned judge’s order, members of the Claimant saw strongly expressed political opinions about Brexit posted on Facebook and Twitter by a High Court judge, who was believed to have been the learned judge who had made the order in this case. Within the very short time frame for lodging an application to the Court of Appeal grounds were drafted alleging bias on the part of the learned judge. Very shortly thereafter, and before the application had been served, it was realised that the social media postings were those of another High Court judge, namely Martin Spencer J., rather than Spencer J. The Claimant promptly notified the court of its wish to withdraw the bias ground, and of its apology for the unjustified criticism of the learned judge. The Claimant takes this opportunity to repeat that apology.
- The Claimant submits that its case is clears the threshold of arguability, and that the learned judge misunderstood its argument. The Claimant invites the Court of Appeal to grant permission to apply for judicial review under CPR 52.15(3). Alternatively, at the very least, the Claimant invites the Court of Appeal to grant permission to appeal, and to quash the “totally without merit” order direction so as to permit fuller exploration of the merits and arguability of the Claimant’s case at a renewed oral application for permission in the High Court.
ANTHONY SPEAIGHT Q.C.
counsel for the Claimant 12 July 2019