The English Democrats Party is in the process of taking the government to court in an effort to prove the UK left the EU on 29 March 2019
The party under their leader, solicitor Robin Tillbrook, set out their case a couple of weeks ago. You can read about it here. The government put forward its defence and now the party has outlined its counter. It’s very much in legalese, so some may not understand it, but if you have any legal experience, it’s easier. And even if you don’t understand all of it, there may be some parts of it you will understand.
Our counter to the UK Government’s Defence; English Democrats – v – The Prime Minister – Case No. CO/1322/2019
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
SubmissionsINTRODUCTION
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, perLord 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.
For a continuation of this item, go to Robin Tillbrook’s blogspot.
It may be arguable that the Withdrawal Agreement/Treaty removes the sovereignty of the crown.
Sovereignty of Parliament refers to the joint power between the HoC and the HoL. It seems to be quite clear that and an individual cannot override that sovereignty in an autocratic way, but must refer any proposed changes to the Law to be decided by not only the HoC but also the HoL.
According to the law in force, it is treason felony to “compass, imagine, invent, devise, or intend” to deprive the sovereign of the crown. It is also a felony to “move or stir” any foreigner to invade the United Kingdom or any other country belonging to the sovereign.
To conclude it was not only illegal for May to make changes to Article 50 without the consent of HoC and the HoL but when, as Home Secretary, she said it was ok to have foreign troops on our land she also committed a felony. I am not trained in Law, but if anyone can demonstrate that I am wrong, please let me know.
“The law is for use on our enemies, for our friends we interpret it”. Giolitti, Italian Prime Minister circa 1850.
I think I get some idea but I am not a legal mind. To me, I don’t see how it is legal or constitutionally allowable for May to hand over our sovereign country to the direct rule of the eu, which is what her treaty does.
It sets up a “joint” committee with the eu’s own court, the ECJ, being the only arbiter settling disputes. That effectively gives direct rule over our parliament that will last for at least 6 years after the transition period. If the quango’s first act is to agree May’s back stop, that will leave us under direct rule forever.
May’s treaty must breach our constitutional rights and is totally undemocratic. … and the supreme court etc are seemingly not interested?
May is not interested in what is in the UK’s sovereign interests, just her own.
I have attempted to read it all without the legal gobledygook beloved of their honors. It makes sense to me .But I expect them to find something . As can all lawyers, and after all, that is all they are. I suppose we will have to rely on them
I’m an idiot . Seriously extreme good luck