As we have been reporting on extensively in an absolutely stunning turn of events Chairman of The English Democrats Robin Tilbrook and well known activist Graeme Moore feel that they have unearthed a revelation that could turn the whole Brexit process on it’s head.
This court case appears to have captured the attention of loyal Brexiteers on social media with Unity News Network being inundated with requests to cover this. It also appears to have reached an incredible £25,000 of grassroots crowdfunding which is an excellent achievement.
We have also been highlighting the complete lack of any mainstream media coverage of this issue. Now even the case doesn’t turn out to be accurate the fact that our EU exit date is being challenged in court should surely lead to some coverage?
We have now uncovered further evidence of constitutional uncertainty surrounding the UK’s place within the EU further to the extension of Article 50.
Bruce Newsome is a Lecturer in International Relations at the esteemed University of California in Berkeley. This piece was originally published on the Conservative Home Website:
She is executing personal diktats and international agreements outside of consultation or ratification by Parliament, outside of consultation with even her own Cabinet, outside of precedent, without due process, and contrary to statutes. She is acting unconstitutionally and unlawfully.
The law she is now evading is the EU Withdrawal Act of June 2018. It is an act of many parts, but more on those later. One part effectively ratifies the international commitment that May triggered in March 2017 by petitioning to leave the EU under Article 50 of the EU constitution (the Treaty on European Union). Since Article 50 provides for two years between petition and separation, Britain is scheduled to leave the EU on 29 March at midnight Brussels time (2300 hours British time). The EU Withdrawal Act effectively ratifies that timing.
Unfortunately, that timing is not fixed internationally, because Article 50 allows for the petitioner to extend or revoke.
This has enabled the EU and May to be two-faced. Their proposed Withdrawal Agreement is supposed to come into effect upon nominal separation, as a transition to a final deal, although they marketed transition itself as a ‘deal’ and an ‘orderly Brexit’. In fact, it weakens Britain’s rights without reducing its obligations, for at least two years, and gives the EU a veto on when Britain can leave. To pressure the recalcitrant, they pretended that: it must be accepted before the clock runs out, it cannot be renegotiated, and a bad deal is better than no deal.
Yet when a bad deal failed to get ratified, they agreed more time. Late on Thursday 21 March, the European Council agreed May’s request to extend Article 50. Outrageously, May and the mainstream media presented a fait accompli – blithely ignoring the constitutional and legislative hurdles.
First, May should have sought Parliament’s ratification, as a matter of courtesy, if not law. A week prior, Parliament supported May’s motions: not to leave the EU without a ‘deal’; to extend Article 50’s clock by another three months to implement her ‘deal’, and to extend indefinitely, if her ‘deal’ were rejected. These were indicative votes – they did not count as laws or as amendments to any laws.
Moreover, the EU’s and Parliament’s expectations of the schedule do not match. On 14 March, Parliament indicated an extension to 30 June if her Withdrawal Agreement were approved, or indefinitely if not approved (whose advocates indicated privately that their intent was for two years).
On 21 March, the European Council granted an extension until 22 May if her WA were approved, or until 12 April if her WA were rejected. The EU chose the latter date to punish Britain with the costs of lodging participation in European elections.
Thus, we have at least four reasons for May to seek ratification of her agreement of 21 March:
The EU’s schedule does not match what Parliament indicated;
The EU’s schedule no longer matches the EU Withdrawal Act’s;
The EU Withdrawal Act ratifies a Brexit day that she triggered, but which she now wants to change;
At least one form of extension would involve unplanned participation in European elections.
Alas, May has not motioned any ratification. Moreover, she has made no arrangements to consult Parliament, or even to consult her Cabinet. (This is now a habit: she did not consult when she wrote to the EU the previous week to request extension.)On Friday, the morning after her agreement with the EU Council, Theresa May instructed Britain’s representative in Brussels to write formally with the nation’s agreement to the extension. Meanwhile, she wrote to Members of Parliament that the ‘Council agreed that if the House approves the Withdrawal Agreement next week then the date of our departure will be extended to 22 May’ or ‘12 April if the House doesn’t approve her WA. She made no mention of the EU Withdrawal Act.
She offered MPs four options:
‘Leave with no deal on 12 April’;
‘Leave on 22 May’ with her WA approved;
Request by 12 April another extension (of undefined period, but certainly beyond participation in EU elections at the end of May);
Revoke Article 50 (Britain would never leave).
May gives no hint that the law must change to validate any of these options. This is my legal opinion, and I am glad to see that Martin Howe QC agrees.Of course, plenty of Remainers can be found to say that international agreement trumps national law, and thence that May has no need to consult Parliament on what she has agreed with the EU Council. I disagree, but, hypothetically, even if they were correct, I would still expect May to seek Parliament’s approval, in order to reconcile executive and legislature on the next step in a bitter journey towards the greatest change in Britain’s constitution since at least 1975.
Her clear intent in her letter is to motion her proposed Withdrawal Agreement a third time – presumably today, Monday. I regard this too as unconstitutional. As John Bercow, the Speaker of the House of Commons, ruled on Monday the week before, she should not keep re-presenting unchanged motions. She surely plans to pretend that her proposal has changed because the EU agreed to extend Article 50, but her Withdrawal Agreement has not changed. It should not be re-presented. She needs to motion a new option for the British-EU relationship after Brexit, or let Britain leave on 29 March ‘without a deal’.
This gets me back to ‘Brexit day’. Whether or not she gets her Withdrawal Agreement approved, she clearly assumes that Article 50 has been extended, but an international agreement without amending domestic law would misalign ‘Brexit day’ and ‘exit day’, both of which are legislated for midnight 29 March.
‘Exit day’ is a typically misleading term that Parliament passed in the EU Withdrawal Act. It is the day on which the Act would: repeal the law that took Britain into the EU’s predecessor (the European Communities Act 1972), carry forward some components of that act, retain some laws enacted by the EU since, allow for two years in which to correct those retained laws, and end the jurisdiction of EU courts. Amendments passed in 2019 have used ‘exit day’ to schedule other legal changes, including trade agreements, tariffs, business competition, business enterprise, and energy products.
If Parliament were to fail to amend ‘exit day’, all those lawful changes would occur at midnight on 29 March. Even if we were to accept, hypothetically, that May’s say-so is sufficient to extend ‘Brexit day’ without amending the Act, ‘exit day’ would be in breach of the extended period of Britain’s membership of the EU.
The EU Withdrawal Act provided for both ‘Brexit day’ and ‘exit day’ on 29 March, just to conform with Article 50, whose timing is an artefact of May’s personal actions as premier (the timing has no other justification – she wasted the first eight months of her premiership procrastinating).
Unless Parliament repeals or amends the Act, both Brexit day and exit day will occur on 29 March. Even if we were to accept the Remainer opinion that Brexit day has been extended by international agreement alone, Brexit day would jump out of alignment from exit day.
Of course, Parliament could choose to repeal or amend the Act – it takes just a Statutory Instrument. However, legislation takes time, and Parliament has only five working days before Brexit. Normally, Statutory Instruments are debated in committees, Commons, and Lords over weeks to years. They could be expedited over days, and May has proved that she can bounce the Commons into voting on Brexit motions without due consideration. Nevertheless, any such ambition can be delayed by maladministration, the unpredictable Speaker, and filibusters.
That is why May is acting as if no Statutory Instrument is necessary: she is hoping that her non-constitutionality won’t be noticed by the public or even Parliamentarians, who are surprisingly ignorant of the British constitution and international relations, as we have seen over nearly three sorry years of procrastination, indecision, misleads, and U-turns.
May might insist that urgency trumps legislation; the Remainer-dominated Parliament might act executively for itself; the EU has normalised the enforcement of only convenient interpretations.
However, the Remainers’ extra-constitutionality serves Brexiteers too. If Remainers don’t need to follow the law for Brexit on 29 March, then Brexiteers can repudiate May’s stupid and unratified agreements with the EU.
The EU could sue Britain in the EU’s own court for a breach of international agreement, but that would just confirm the case for Britain to regain its national sovereignty – and the best way to do that is to confirm the EU Withdrawal Act’s repeal of EU jurisdiction.
The full text of the motion awaiting judgement by a high court judge is as follows:
1. It is submitted that the United Kingdom of Great Britain and Northern Ireland has left the European Union as of the 29th March 2019 after the expiry of its two year Notice to Leave dated 29th March 2017.
2. Much of the relevant law has been explored and ruled upon by this Honourable Court and by the Court of Appeal and by the Supreme Court in the case of R (on the application of Miller and another) – v – Secretary of State for Exiting the European Union [2017] UKSC5. Consequently Parliament enacted the European Union (Notification of Withdrawal) Act 2017.
3. The United Kingdom of Great Britain and Northern Ireland joined the European Union pursuant to Treaty in 1972 and subsequently the European Union Act 1972 was enacted to give domestic legal force to the Treaty obligations to the European Union.
4. The current overarching constitution of the European Union was reformed under the Lisbon Treaty which was brought into direct legal force in the United Kingdom pursuant to the European Union (Amendment) Act 2008.
5. Article 50 of the Lisbon Treaty reads as follows:-
“Article 50 – Treaty on European Union (TEU)
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
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 notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asked to rejoin, its request shall be subject to the procedure referred to in Article 49.”
6. On the 23rd June 2016 the voters of the United Kingdom, by a majority, and the voters of England by a larger majority, voted, in the largest democratic mandate in the United Kingdom’s history, to leave the European Union.
7. In accordance with the United Kingdom’s “Constitutional Requirements” Parliament enacted the European Union (Notification of Withdrawal) Act 2017. The Preamble to that Act states that it is:- “An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU”
The Act provides:-
“1. Power to notify withdrawal from the EU
(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.”8. Pursuant to the statutory power granted by the European Withdrawal Act 2017 the Prime Minister duly served the Notice on 29th March 2017. That Notice expired on the 29th March 2019.
9. Accordingly it is submitted that as of the scintilla temporis after the expiry of the said notice on the 29th March 2019, the United Kingdom of Great Britain and Northern Ireland has left the European Union.
10. In the European Union Withdrawal Act 2018 Parliament further enacted a transitional scheme whereby it proposed to transpose all EU law into a direct effect in the UK jurisdictions of Northern Ireland, Scotland and England and Wales. Much of that Act has not been brought into force. The Act mis-describes its implementation date as “exit day”. This is something of a misnomer since under the true construction of this Act it has no role, either purported or implicit, in determining the date of departure of the UK leaving the European Union. Within the meaning of the Act, “exit date” is merely the implementation date for the Act’s transactional arrangements.
11. The Applicant is aware that there has been purported ministerial Regulation under the 2018 Act which may have been approved by resolution in both Houses. However even if it has, it is submitted that such a Regulation cannot of itself be in any way definitive of the UK’s actual departure from the European Union. The relevant wording of the Act makes this clear:-
“European Union (Withdrawal) Act 2018
An act to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.
[26th June 2018]1 Repeal of the European Communities Act 1972
The European Communities Act 1972 is repealed on exit day.
2 Saving for EU-derived domestic legislation
(1) EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.
20 Interpretation
(1) In this Act—
“exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2) to (5));
(2) In this Act references to before, after or on exit day, or to beginning with exit day, are to be read as references to before, after or at 11.00 p.m. on 29 March 2019 or (as the case may be) to beginning with 11.00 p.m. on that day.
(3) Subsection (4) applies if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1).
(4) A Minister of the Crown may by regulations—
(a) 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, and
(b) amend subsection (2) in consequence of any such amendment.”
12. Despite the express wording of the European Union (Notification f Withdrawal) Act 2017, expressly only empowering the Prime Minister to give Notice to withdraw the United Kingdom from the EU, the Prime Minister has purported to request an extension of the Article 50 date for departure and subsequently purported to agree an extension to the date of departure.
13. It is submitted, in accordance with long and high authority of legal precedents and also recently and comprehensively in R (on the application of Miller and another) – v – Secretary of State for Exiting the European Union [2017] UKSC5 that, statute fully displaces any residual prerogative powers.
14. In the premises the only power that the Prime Minister had, as regards Article 50, was the service of the Notice withdrawing the United Kingdom from the EU and giving two years notice. That power was functus officio on the 29th March 2017. Accordingly, her purported request for an extension of the date of departure and the Government’s purported agreement to such an extension is and was unlawful and is and was null and void.
15. In the premises the Applicant seeks a Declaration from this Honourable Court that the United Kingdom of Great Britain and Northern Ireland left the European Union upon the expiry of the Article 50 Notice on the 29th March 2019.
Lead Correspondent | David Clews is the Lead Correspondent for UNN, with over 20 years of political/campaigning experience and a wealth of social media and communication skills David gets to the heart of what is really important to the real people of the UK.
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