Pages tagged "Brexit"
What emerges from the silence of the main stream media is the deafening sound of an old world disintegrating.
ENGLISH DEMOCRATS – CLAIM FOR A DECLARATION THAT THE UNITED KINGDOM LEFT THE EUROPEAN UNION ON 29TH MARCH 2019
On 2nd April the English Democrats, the English nationalist political party, issued a judicial review claiming the Prime Minister could not lawfully agree to an extension to the period before the United Kingdom could leave the European Union under Article 50 of the Treaty on European Union. The Court is asked to declare that, because she had no such power, the UK automatically left the EU on 29th March – the original ‘exit day’, two years after notification was made.
This challenge was to the extension offered by the EU on 27.3.2019 and accepted by the PM on 28th March not to the additional extension the PM claimed to agree to today (11th April).
Attached are submissions filed in support of the challenge. The Government is expected to reply by 17th April.
The English Democrats’ case is that the PM has no statutory power to agree to an extension. The change to ‘exit day’, in a statutory instrument under the European Union Withdrawal Act 2018, can only be made if the Article 50 period has already been extended under international law. If the PM had no power to extend, Parliament could not lawfully make the statutory instrument.
The English Democrats rely on the Supreme Court decision in Miller v Secretary of State, which found that the government cannot change how and whether EU law applies to the UK by the Royal Prerogative. The PM could only notify under Article 50 under the EU (Notification of Withdrawal) Act 2017. The inevitable result was that the UK would leave the EU after two years, when EU law would cease to apply to the UK. Any extension would change the law by making EU law apply beyond that date, which the Act did not give the PM the power to do.
In addition, the English Democrats’ case (also relying on Miller) is that an agreement to extend the Article 50 period would frustrate the purpose of the 2017 and 2018 Acts; particularly as there is no restriction on the length of any potential extension and the number of extensions that may be requested – as the latest extension has shown.
The ‘Cooper-Letwin’ Act giving Parliament power over extension requests has no effect, as no further extension could be given if the UK had already left the EU by the time it came into law.
The English Democrats rely on the Wightman decision of the European Court of Justice in support of our contention that, under EU law, the PM can only agree to an extension ‘on behalf of the UK’ if she has the constitutional authority to do so. Therefore, the UK left the EU on 29th March under EU as well as UK law.
Former Court of Appeal judge, Sir Richard Aikens, has said the English Democrats’ argument is at least ‘highly arguable’, see https://www.dailymail.co.uk/news/article-6882583/Former-appeal-judge-says-legality-Brexit-extension-tested-court.html.
Solicitor Robin Tilbrook, who is the Chairman of the English Democrats, said that:
“The good news for all those who voted Leave is that we could already be Out of the EU without being saddled with Theresa May’s appallingly bad deal! The challenge to Leave supporters is that this case is our best and maybe our only chance of actually getting out of the EU. This means that we must win it at all costs! I therefore appeal to all Leave supporters to put all differences aside and to unite in supporting this case”
The claim is being crowd-funded and donations can be made here: https://www.englishdemocrats.party/donate
The English Democrats’ Submissions in full have been published here: https://robintilbrook.blogspot.com/2019/04/detailed-submissions-in-re-queen-on.html
Please contact Robin Tilbrook with any queries:-
The English Democrats
Article by Jonathan Clark
The British have, typically, little interest in constitutional law. Unlike the French, who regularly rewrite their constitution in revolutions or attempts to prevent revolutions, the British tend to assume that little changes and that all is well. Alas, the constitutional problems accumulate nevertheless. Dominic Grieve was right in a recent Commons debate to say that there are areas of the British constitution that need clearer definition. But what exactly are they? Why is the Brexit question so difficult to resolve through the familiar Westminster machinery?
The big issues of constitutional conflict are so fraught because they happen in legal grey areas, in which agreement and definition have never emerged. Today there are two such major areas, though many minor ones.
The first is the question of sovereignty: where does ultimate authority reside? It is many centuries since any significant number of people claimed that it resided with the person of the monarch alone. But the decline of that image was followed by the growing popularity of another, ‘the Crown in Parliament’, that is, the monarch, the Lords and the Commons acting together. This image never went away, but was upstaged by the doctrine of the lawyer A. V. Dicey (1835-1922) that ‘Parliament’ (meaning, increasingly, the House of Commons) was sovereign. Yet from the Reform Bill of 1832 into the 20th century, successive rounds of franchise extension strengthened another old idea, that the ultimate authority lay with ‘the People’, however defined.
From 1973, when the UK joined the EEC, it slowly became evident that the answer was ‘none of the above’: ultimate authority lay with Brussels. Parliament rubber-stamped increasing amounts of secondary legislation from an evolving super-state. In 2019, departure from the EU would remove that layer of command. This prospect inevitably reopens an old debate, which had never really been settled: was Parliament or the People finally supreme? Its re-emergence reminds us that Dicey’s doctrine of parliamentary sovereignty was the opinion of one commentator only. That opinion partly corresponded to contemporary practice, partly not.
Today, the tide is everywhere running in the opposite direction. Deference and duty daily fade; the key word everywhere is ‘choice’, and this means the choices of the many, not just the few. The transformation of communications places steadily more power in the hands of a steadily more educated, better informed ‘People’. But this trend has been matched by another, seen across the West in recent decades and at all levels: in increasingly complex societies, the executive has everywhere grown more powerful vis-a-vis the legislature. Political scientists have largely ignored this tide, but it has swept forwards nevertheless. It means that two powerful social forces now collide. Across western democracies, ‘ordinary people’ find means of complaining that they are ignored by elites who ‘just don’t get it’; elites decry ‘populism’ and exalt the opinion of ‘experts’, expressed to within one decimal point in forecasts of outcomes 15 years hence.
This collision reopens a second, equally old, question. What is a Member of Parliament: a delegate, or a representative? Edmund Burke famously outlined the case for the second: MPs, once elected, represent the nation as a whole; they owe the nation their best judgment; they are in nobody’s pocket. But another idea is just as old, and equally honourable: MPs are sent to Westminster by their electors to redress the electors’ grievances, and are accountable to them. Against Burke, we can set another intellectual, Andrew Marvell, MP for Hull in 1659-78, who was paid by his constituents and regularly reported back to them. Understandably, Burke’s high-sounding doctrine proved the more popular among MPs. But after he framed it, his constituents in Bristol threw him out for favouring Irish commercial interests over theirs, and he represented thereafter only his patron’s pocket borough.
Both ideas in their pure form are unacceptable. But how the balance between the two is to be struck can never be quantified or defined, and a crisis like the present makes the impossibility of a definition clear. ‘The People’ voted by 52 to 48 for Leave, and a larger percentage now says ‘just get on with it’; but about five-sixths of the House of Commons are for Remain.
Among Conservative MPs, something under 100 are evidently for Leave; of the other 200 or so, over half are on the Government payroll in one capacity or another, and more would like to be. So profound a dissociation between elite and popular opinion is rare. Worse still, public opinion polls and the growing practice of referenda quantify the problem as never before; the issue is easily expressed in binary terms (Leave or Remain); and the arguments have been fully rehearsed. Other countries show similar problems of relations between the many and the few, but in the UK these are brought to a focus. Since the constitution has failed to resolve them, public debate is full of expressions of elite contempt for the ignorant, prejudiced, xenophobic, racialist populace on the one hand; of popular contempt for the self-serving, condescending, out-of-touch Establishment on the other.
Before 1914, Conservative peers making technical points over a budget were manoeuvred by Lloyd George into a constitutional confrontation that could be memorably summed up as ‘Peers versus the People’. In this clash, the peers could only lose. Now, the Remainers have been manoeuvred into a constitutional confrontation that, if it goes much further, will be labelled ‘Parliament versus the People’. In such a conflict it can only be Parliament that will lose. In that event, the damage would be considerable.
These great questions of constitutional definition are seldom solved; rather, the issues are defused by building next to them a new practice. The present challenge is to accommodate that new arrival in the political arena, the referendum, and to turn it into a clearly specified, moderate, and constructive institution, as it is in Switzerland. Those concerned about daily policy should think again about a subject, once salient in university History departments but now everywhere disparaged: constitutional history.