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Why, M’lud, we left the EU on March 29


The English Democrats are bringing a judicial review action in the High Court for a ‘Declaration that the UK is already Out of the EU’. Robin Tilbrook is the chairman of the English Democrats and is the solicitor running this case. This is what he has put to the High Court:

1. The English Democrats are arguing, for the reasons set out below, that the United Kingdom of Great Britain and Northern Ireland has left the European Union as of 29 March 2019 after the expiry of its two-year Notice to Leave dated 29 March 2017.

2. Much of the relevant law has been explored and ruled upon by this Honourable Court and by the Court of Appeal and by the Supreme Court in the case of R (on the application of Miller and another) – v – Secretary of State for Exiting the European Union [2017] UKSC5. Consequently Parliament enacted the European Union (Notification of Withdrawal) Act 2017.

3. The United Kingdom of Great Britain and Northern Ireland joined the European Union pursuant to Treaty in 1972 and subsequently the European Union Act 1972 was enacted to give domestic legal force to the Treaty obligations to the European Union.

4. The current overarching constitution of the European Union was reformed under the Lisbon Treaty which was brought into direct legal force in the United Kingdom pursuant to the European Union (Amendment) Act 2008.

5. Article 50 of the Lisbon Treaty reads as follows:-

Article 50 – Treaty on European Union (TEU)

i. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

ii. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

iii. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

iv. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

v. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

6. On 23 June 2016 the voters of the United Kingdom, by a majority, and the voters of England by an even larger majority, voted, in the largest democratic mandate in the United Kingdom’s history, to leave the European Union.

7. In accordance with the United Kingdom’s ‘Constitutional Requirements’, Parliament enacted the European Union (Notification of Withdrawal) Act 2017.

The Preamble to that Act states that it is: ‘An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.’

The Act provides:

1. Power to notify withdrawal from the EU

(i) The Prime Minister may notify, under Article 50 (2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

(ii) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

8. Pursuant to the statutory power granted by the European Withdrawal Act 2017 the Prime Minister duly served the Notice on 29 March 2017. That Notice expired on the 29 March 2019.

9. Accordingly it is submitted that as of the (moment) after the expiry of the said notice on the 29 March 2019, the United Kingdom of Great Britain and Northern Ireland has left the European Union.

10. In the European Union Withdrawal Act 2018 Parliament further enacted a transitional scheme whereby it proposed to transpose all EU law into a direct effect in the UK jurisdictions of Northern Ireland, Scotland and England and Wales. Much of that Act has not been brought into force. The Act mis-describes its implementation date as ‘Exit Day’. This is something of a misnomer since under the true construction of this Act it has no role, either purported or implicit, in determining the date of departure of the UK leaving the European Union. Within the meaning of the Act, ‘Exit Date’ is merely the implementation date for the Act’s transactional arrangements including the date for repeal of the European Communities Act 1972.

11. The Applicant is aware that there has been a purported ministerial Regulation under the 2018 Act which may have been approved by resolution in both Houses. However even if it has, it is submitted that such a Regulation cannot of itself be in any way definitive of the UK’s actual departure from the European Union.

12. Despite the express wording of the European Union (Notification of Withdrawal) Act 2017, only empowering the Prime Minister to give Notice to withdraw the United Kingdom from the EU under Article 50(2) of the Lisbon Treaty, the Prime Minister has purported to request an extension of the Article 50 date for departure and subsequently purported to agree an extension to the date of departure, under Article 50(3) of the TEU.

13. The only power that the Prime Minister had, as regards Article 50, was the service of the Notice withdrawing the United Kingdom from the EU and giving two years notice. That power was completed on 29 March 2017. Accordingly, her purported request for an extension of the date of departure and the Government’s purported agreement to such an extension is and was ultra vires, unlawful and consequently is and was null and void.

14. As a result of the matters set out above the Applicant is entitled to and seeks, a Declaration from this Honourable Court that the United Kingdom of Great Britain and Northern Ireland left the European Union upon the expiry of the Article 50 Notice on the 29 March 2019.

As Lord Justice Sir Richard Aikens has said in the Daily Mail this is clearly an arguable case and so I am expecting this to come before the High Court for a Declaration to be made that we are Out and all the plotting and chaos in Parliament is ‘cut short’ at a stroke!

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Robin Tilbrook
Robin Tilbrook
Robin Tilbrook is chairman of the English Democrats

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