We have been reporting extensively on the court case undertaken by Robin Tilbrook of The English Democrats over what he believes has been the illegal extension of Article. Mr Tilbrook and certain leading legal minds believe that we have already exited the EU on the 29th of March.
Now in an incredible intervention in The Telegraph, popular Brexit MP Sir Bill Cash has agreed with this assessment:
After hours of discussions with QCs and former judges, I believe the British Government’s extension of Article 50 is unlawful.
It is a fundamental principle of UK constitutional law that the Government may not use its powers, including its powers to make international agreements, to frustrate the intention of Parliament. Parliament’s intention is to be found, and is only to be found, in the laws it makes. Resolutions of the House of Commons may sometimes be politically important, but they are of no legal effect unless an Act of Parliament expressly gives them legal effect.
The intention of Parliament is, and remains still, that the UK must leave the EU. This is clear from the legislation to trigger Article 50(the EU Notification of Withdrawal Act 2017), in which Parliament referred to and declared “the United Kingdom’s intention to withdraw from the EU”. The EU Withdrawal Act 2018 gives effect to the decision to withdraw by repeatedly referring to “exit day”.
The Withdrawal Act expressly states: “The European Communities Act 1972 is repealed on exit day”. Parliament originally set that day precisely at March 29 2019, but the Government has purported to extend this by statutory instruments. These can be challenged in the courts.
It is essential to note that Parliament’s legal intention for the UK to leave the EU is not conditional upon a withdrawal agreement. While many MPs have said that they do not want the UK to leave without a withdrawal agreement, and the House of Commons has passed a resolution stating this, the law of the United Kingdom is not affected by their protestations. Our law is simply that the UK must leave the EU.
It follows that when the Prime Minister exercised her power to act for the UK at the EU Council, she was obliged under our law to refrain from doing anything that would frustrate the intention of Parliament that the UK must leave the EU with or without a withdrawal agreement.
These are manifest limitations on the Prime Minister’s competence. They concern rules of UK internal constitutional law of fundamental importance. In these circumstances, I believe that it would be impossible for the Prime Minister, acting lawfully under UK law, to accept an extension of the kind proposed. When I called on her to resign last week in the House of Commons, I reminded her that she had promised over 100 times not to extend exit day.
For the Prime Minister to agree to such an extension in these circumstances is to knowingly use her power in a way that she herself believes would risk frustrating Parliament’s intention that the UK must leave the EU. This is legally beyond the pale.
It is quite obvious from her letter to Donald Tusk of April 5 2019 that the Prime Minister has absolutely no plan regarding the purpose of any extension, other than a hope that some consensus may finally be reached in the Commons or by a Faustian pact with Jeremy Corbyn. This is no reasonable basis for agreeing to an extension that would frustrate the fulfilment of Parliament’s intention by extending exit day to Hallowe’en this year. This outrageous proposal, adding insult to injury with the trick or treat of EU-imposed conditions, provides no proper basis requiring the UK to submit.
The Government’s use of its powers – including the so-called prerogative under which international relations are conducted – can be challenged in the UK courts, as Gina Miller successfully did in the Supreme Court. A challenge in the courts is fully justified in respect of the purported extension of time.
We have been told by the Prime Minister that “we will not have truly left the European Union if we are not in control of our own laws”. The repeal of the European Communities Act 1972 achieves that control as the law of the land. The Withdrawal Agreement drives a coach and horses through the constitutional status of Northern Ireland and undermines the repeal of that 1972 Act.
This is a political betrayal of the referendum vote in June 2016. That vote was expressly given by Parliament under the Referendum Act 2015 to the people and became the law of the land. It cannot be taken back by mere resolutions of the Commons nor by unlawful statutory instruments. Indeed, on Friday evening, five minutes before the deadline on the statutory instrument for the regulations to confer the extension to October 31, I tabled a block against the regulations which continues until the House returns.
Sir Bill Cash MP is chairman of the European Scrutiny Committee and former shadow Attorney General
Below is the most recent press release from Mr Robin Tilbrook:
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).
There is a link below to the 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”
Robin Tilbrook
Chairman,
The English Democrats
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