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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 March.
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 Tibrook with any queries:-
The English Democrats,