Weaknesses of the ‘Exit Day’ Legal Challenge Exposed
End the chaos Team Summary
On Question Time this week, a member of the audience talked about the Tilbrook case. It is seen by Brexit-supporters as a way of using the courts to secure a hard Brexit. It has, however, little legal merit and would not lead to a legal conclusion that the UK should have left the EU on March 29 2019, and that the Extension to Article 50 Mrs May put in place was unlawful for the following reasons:
- Extending Article 50 does not deprive or curtail citizens’ fundamental rights but preserves them.
- The European Union Withdrawal Act 2018 (EUWA) “Exit Day” clause is provisional until a commencement order is passed. No commencement order has been passed.
- The “Exit Day” was amended under secondary legislation via Henry VII powers approved by MPs when they passed the European Union Withdrawal Act 2018 (EUWA).
- The argument that Parliament somehow intended to sanction the UK to leave the EU without a deal and thereby annihilate citizens’ rights cannot be true given that Parliament has already passed a Cooper/Letwin Bill preventing this very outcome.
- An extension does not change the source of rights but simply preserves the continued application of the 1972 European Act and the EU Treaties until Parliament passes the Withdrawal Agreement.
The Government has admitted there also needs to be a Withdrawal Agreement Implementation Bill passed to finalise the UK’s exit and sanction the inherent removal of individual rights. However, neither the Withdrawal Agreement nor the Implementation Bill have been passed.
Ironically, regarding point 2, above, William Cash MP himself said:
“We now know that, according to the EU legal database, at least 12,000 regulations have been brought in since ’73, with 7,900 instruments derived from EU law. It is a wild assertion that the Henry VIII provisions contained in this Bill are an infringement of parliamentary sovereignty, and for that reason the Opposition amendment should be completely disregarded.
Furthermore, Henry VIII powers have been used in enactment after enactment. Indeed, we had them in the recent Energy Bill and Immigration Bill, which contained 22 separate Henry VII powers.”
Will Sir William Cash MP be appearing for the prosecution or the defence or both in this case?
Anneli Howard – Barrister Blog
Across social media, there have been many exuberant conversations about proceedings that are being brought by a solicitor, Mr Robin Tilbrook, the chairman of The English Democrats, and supported by Sir Bill Cash, the Tory MP.
The English Democrats – ED – claims that the United Kingdom should have left the European Union on March 29 2019, as originally planned, and that the extension granted prior to the Easter recess was illegal as the Prime Minister never had the authority to make such a decision in the first place. Somewhat ironically, the legal challenge purportedly relies on the same principles raised in R (Miller) v Secretary of State for Exiting the European Union – the Supreme Court case that Gina Miller brought against the Government, upholding Parliament’s sovereign right to authorise the UK’s withdrawal under Article 50.
On April 17, the Government served its summary grounds, dismissing the claim as without merit. The Administrative Court will soon address whether the claim should be granted permission to proceed or rejected as unarguable. If the Court rejects the claim, ED will have a further opportunity to seek reconsideration at an oral hearing. That stage is likely to go ahead (regardless of the merits) as Mr Tilbook and Sir Bill Cash have managed to crowdfund in excess of £100,000. It is, however, misleading to report that a court battle to rival Mrs Miller’s has begun.
Mrs Miller’s case had clear legal merit
There was, without question, a serious issue to be tried in the Miller case as to whether the Government could trigger the Article 50 withdrawal process without prior Parliamentary authority in the form of an Act of Parliament. The issue had clear legal merit, which is, of course, why the case was upheld, first in the Divisional Court, and then, on appeal, in the Supreme Court. It was a matter of legal principle and not money that was the deciding factor in the Miller case – most of the legal team (myself included) worked pro bono.
It is disappointing that, since the Miller case and the later revocation case before the CJEU – Wightman – the personal abuse against Mrs Miller has continued. I am writing this blog not just to raise my concerns about the Tilbrook case, but to also dispel some of lies that have been disseminated about the Miller case which have led to my former client being so outrageously vilified and threatened across social media.
Some have criticised Mrs Miller for bringing the Article 50 case and introducing the concept of a meaningful vote to frustrate the Brexit process. These criticisms are baseless. To start with, the Supreme Court ruling did emphatically did not establish new law. All it did was to re-affirm centuries-old case law regarding the true extent of Parliamentary sovereignty and the proper balance of power between Parliament and the Executive. Those constitutional principles were first established by Sir Edward Coke back in 1610 and confirmed in the Bill of Rights 1689. It is the very essence of the judicial function to oversee and ensure that the working “partnership” between Government and Legislature is respected.
The bedrock of Parliamentary sovereignty is that the Crown (nowadays the Government or Executive) cannot change common law or amend a statute without prior authorisation from Parliament. Parliament reigns supreme as “senior partner” and the Government, as “junior partner,” has to act within the scope of powers that it has been given. The underlying principle is that only Parliament can create statutory rights and only Parliament can take such rights away or change the source of those rights. As the Courts recognised in the Miller case, any form of Brexit (whether hard or soft) will ultimately remove or curtail individual rights granted by Parliament and will need Parliament’s approval before it can proceed.
Mr Tilbrook is trying to turn constitutional principle on its head
In contrast, the Tilbrook case is trying to turn the conventional constitutional principle on its head. Mr Tilbrook argues that the Government cannot lawfully extend “exit day” in the EU Withdrawal Act 2018 (“EUWA”) or enact secondary legislation to carry the extension into effect because it did not have the prior authorisation of Parliament. Yet, the claim woefully overlooks the key legal and factual circumstances which differentiate the withdrawal process in the Miller case from the extension scenario.
Put simply, Parliament has considered and legislated for a variable “exit date”, so the requirements for further Parliamentary authorisation are not triggered.
Let’s take this in stages.
- No removal of rights: Leaving the EU under Article 50(1) will inevitably lead to the deprivation or curtailment of citizens’ fundamental rights. Both UK and EU citizens will lose rights, whether they are resident here or abroad. This was recognised by the Divisional Court and the Supreme Court in Miller and the CJEU in Wightman.
- Article 50 is designed to make sure that the removal of rights is done in an orderly fashion and can only be done in accordance with the law and due process. That is why Article 50(1) prescribes that the withdrawal must be carried out in accordance with the withdrawing Member State’s constitutional requirements. In the case of the UK’s own long established constitutional law, that requires Parliamentary authority to remove EU rights.
- But an extension is the opposite situation – rather than removing rights, the extension maintains the status quo. The Claimant accepts this at para 24 of their submissions. As the CJEU confirmed in Wightman, until the exact point of departure and during any period of extension, the UK remains a Member State with all its rights and obligations in place. So do its citizens and citizens from the EU27. As existing rights are being preserved rather than removed, there is no need for prior Parliamentary approval under UK constitutional law.
- No unauthorised statutory amendment: The EUWA is not yet fully in force and the main elements of it require secondary legislation to enter into force. As such, although “exit day” was originally defined as 29 March 2019, that clause remains provisional –work in progress – and does not “bite” unless and until a commencement order is passed. Furthermore, through s.20 of the EUWA, Parliament explicitly authorised the Government to amend the EUWA (including the definition of Exit Day) through secondary legislation which can be passed without a full Act of Parliament.
- That delegated power – known as a Henry VIII clause – does not need repeated affirmations from Parliament each and every time an extension is sought and given MPs, including Sir Bill Cash, voted to approve these Henry VIII powers being given to the Government. The result being that Parliament has already authorised the Executive to amend the EUWA to reflect the terms of any extension sought and granted.
- No need for authority to seek an extension: The Claimant argues that Parliament has not authorised the extension and the Government could not use its prerogative powers to negotiate one. These arguments are mis-placed. The power to seek and agree an extension is not technically part of the Crown’s prerogative in negotiating and agreeing international treaties on the international plane. The Treaty of Lisbon was successfully negotiated and ratified in 2008 and the power of extension in Article 50(3) was agreed as part of that process. It is the exercise of that power which is being contested in this case. That forms part of the Government’s delegated powers under the EUWA. The majority of the arguments in the claim are therefore misdirected and tilting at windmills.
- The Claimant then raises a formalistic argument that the delegated Henry VIII powers are tightly circumscribed and can only be exercised where the Government knows the exact date and time of the new exit date. ED argues that it is not possible to imply terms to broaden the scope of that power beyond those limited circumstances.
- The logic of the Claimant’s argument appears to be that, as a result of alleged or constructed technical deficiencies in statutory drafting, Parliament must have envisaged, that in any situation outside those narrowly defined limits, it was sanctioning the UK to leave the EU without a deal and to annihilate citizens’ rights in the process. That extreme outcome does not sit as a matter of common sense, law or constitutional principle. As we repeatedly hear that there is no majority in Parliament for the UK exiting without a deal and, indeed, it has recently voted under the Cooper/Letwin Bill to prevent that outcome taking place, it is clear that Parliament’s intention does not sanction a no-deal outcome.
- No change to the source of law: In Miller, the Supreme Court held that Parliamentary sovereignty was invoked whenever there was a change to the source of law – i.e. an Act of Parliament was necessary to “turn off the tap” of rights, obligations and liabilities flowing from the European Treaties via the 1972 Act.
- But an extension does not change the source of rights. The extension simply preserves the continued application of the 1972 Act and the EU Treaties until such point as Parliament resolves to adopt the Withdrawal Agreement (in whatever form).
- The Government agrees that there needs to be a further Act of Parliament before the UK’s definitive exit. This Withdrawal Agreement Implementation Bill (WAIB) will be a necessary constitutional requirement to finalise the UK’s exit and sanction the inherent removal of individual rights
However, the WAIB can only be enacted on the basis that Parliament is properly informed of the full implications of the UK’s withdrawal. Parliament cannot vote “blind” without knowing the terms of the ultimate deal and future relationship (i.e. both the Withdrawal Agreement and Political Declaration) as the extent of destruction of individual rights will vary according to the precise Brexit model selected. Until that point, the 1972 Act and the Treaties remain in full effect, and in view of the ruling in Wightman, it is also legally and unilaterally open to Parliament to decide which Brexit model it prefers or simply revoke the notification altogether.
Courts are not the appropriate forum to air public opinion or polemical debate
The last three years have taught us just how much Britain’s relationship with Europe means, in many different ways, to a divided and emotional populace. It is also teaching us the limits of our constitutional and governance processes, the deficiencies in our democratic processes and the need for a proper balance and separation of powers between the Executive, Legislature and Judiciary.
There are important cases of the rule of law has been undermined by recent events. That means the Courts must have the power to determine genuine legal questions – including the power to grant declaratory relief on constitutional law matters and intervene to prevent unlawful Executive actions. It is vital that the Courts do not hesitate to discharge their duty to provide answers to genuine legal questions when certainty is required, especially in a country that has an unwritten constitution. That is exactly what happened in Miller.
Like Mrs Miller, Mr Tilbrook needs to persuade the Court he has an arguable case that should proceed to a full hearing. He is likely to fail, both on the papers and when he applies to renew his application. This has nothing to do with his perspective on Brexit, but because his case is so weak on the law.
Courts are not the appropriate forum to air public debate or polemical debate.
In respect of crowdfunding, it serves an important role in opening up access to justice and enabling important cases of principle but there are serious ethical questions about the potential for exploiting That draws judges into inappropriate questions of policy that are the proper reserve of the Executive. There are also serious questions about the potential for exploitation of donors’ anxieties, vulnerabilities and false hopes by launching crowdfunders for inappropriate or unfounded actions.
All lawyers should keep that in mind, especially those deriving income from cases that depend on raising money from the general public.
This blog is by a barrister specialising in EU law, competition & consumer disputes, regulatory challenges, WTO/international trade.