Could this situation really be made any more of a catastrophe by our politicians.
In a judicial review case called “The Queen (On the Application of The English Democrats) v The Prime Minister… (proceeding in The High Court under Number CO/1322/2019) a small political party (The English Democrats) are arguing the extensions to the exit date of 29 March are unlawful – the Prime minister put the cart before the horse.
(See their press release here: https://www.englishdemocrats.party/press_release_english_democrats_v_uk_gov
From a brief read of their case (which a former Appeal Judge Sir Richard Aikens says is arguable and “…can only be determined by a Court…”) the main argument – in summary – is this:
- Article 50 of the Treaty on European Union says 2 years notice must be given by a member state which wants to leave.
- Do you remember the case brought by Gina Miller – R (Miller) v Secretary of State for Exiting the European Union  UKSC? In that case the Supreme Court held that the Prime Minister could not use the “Royal Prerogative” to give two years notice to the EU because that would be a Prime Minister nullifying UK laws passed by the UK Parliament. Notice could only be given if Parliament said so.
- Parliament was asked and then passed the European Union (Notification of Withdrawal) Act 2017 which only gave the Prime Minister the power to give notice.
- The Prime Minister gave Notice which expired on the exit date – 29 March 2019.
What happened next was the Prime Minister could not get her Withdrawal Treaty through Parliament and requested an extension to the two year period.
The Council of the EU, upon receipt of the first request from the Prime Minister to move the exit day back, unanimously offered two dates to the UK:-
- The 22nd May if UK Parliament approved the Withdrawal Treaty;
Otherwise the 12 April 2019.
This offer was accepted by the Prime Minister on behalf of the United Kingdom.
(There has since been a second “extension” to 31 October.)
The English Democrats argue that if the Prime Minister did not have the power to give notice – because it would change UK laws which are the preserve of Parliament – then she cannot have had the power to extend the two year period – because that also changes UK laws.
Only Parliament could have authorised the extension.
In other words, the government, acting through the Prime Minister and her agents, cannot make changes to the law of the United Kingdom – overriding parliamentary sovereignty. Parliament must give a decision first – not just confirm an agreement which has already been made.
Because of this Prime Ministers’s petulant conduct there is an arguable case we may already have left the EU, the European elections which took place were unlawful and the results void.
You couldn’t make it up.
Next week we will look at the governments response.