R Elizabeth Webster v The Secretary of State for Exiting the European Union
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Mr Justice Green |
| Judgment Date | 12 June 2018 |
| Neutral Citation | [2018] EWHC 1543 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5929/2017 |
| Date | 12 June 2018 |
[2018] EWHC 1543 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Gross
Mr Justice Green
CO/5929/2017
Mr H Mercer QC, Mr G Lewis & Ms J McArthur (instructed by Geldards LLP) appeared on behalf of the Claimant.
Mr T Cross instructed by the Government Legal Department appeared on behalf of the Respondent.
This is a renewed application on the part of the claimant for permission to apply for judicial review. As characterised by the claimant, she challenges the defendant's ongoing conduct of the Brexit negotiations:
“In the absence of a ‘decision to withdraw’ from the European Union that accords with the UK's constitutional requirements as required by Art.50(1) Treaty of the European Union.”
Mr Mercer described this as a public interest challenge. We do not disparage the motivation for such challenges given the importance of the rule of law. However, the fate of the application in question does not turn on the motives of those making it.
Art.50 of the Treaty on European Union (“the Treaty”) provides as follows:
“1) Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2) The Member State which decides to withdraw shall notify the European Council of its intention […].”
The claimant's argument, in a nutshell, is that the United Kingdom has not taken a qualifying decision within Art.50(1). It has therefore not fulfilled a necessary condition precedent to notifying the decision under Art.50(2).
Accordingly, the claimant seeks a declaration:
“[…] that the UK has not made a valid ‘decision to withdraw’ from the European Union in accordance with its constitutional requirements, as required by Art.50(1) of the Treaty on European Union, such that the defendant has no authority to conduct the withdrawal negotiations for which Art.50(2) of the TEU provides.”
Supperstone J refused permission on the papers. He said this:
“2) The claim is out of time. The claim form must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose, CPR 54.51.
The challenge necessarily involves the contention that the Act of Notification of the UK's intention to withdraw from the EU was unlawful. Accordingly, her claim arose at the time the notification was given on 29 March 2017.
The claim form was filed on 22 December 2017, nearly 9 months after the notification. No good reason has been an advanced for the extension of time.
3) Further, there has been undue delay which I consider would be detrimental to good administration, s.31(6(a) SCA 1981. The claimant seeks a declaration that the defendant's ongoing conduct of the negotiations is ultra vires. However, she sought no interim relief preventing the commencement of negotiations.
4) In any event, I consider the claim to be unarguable. In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court held that notification could lawfully be given by ministers if the Parliament providing prior authorisation for which it did. The notification being lawful, it follows that the challenge to the ongoing negotiations must fail.”
This application is the latest in a series of similar applications advancing the same argument. In all cases the High Court has refused permission to apply and, in two, it certified that the claims are Totally Without Merit (“TWM”), pursuant to CPR 23.12(a).
Undeterred, the claimant has pursued the present renewed application.
The defendant's response is straightforward. First, on its merits, the claim is unarguable. Secondly, it is out of time under CPR 54(5)(1) and there is no good reason for extending time. Thirdly, permission should be refused under s.31(6)(a) of the Senior Courts Act 1981 (“the 1981 Act”) on the basis that the claim has been brought with undue delay and that to grant the relief sought would give rise to the clearest possible detriment to good administration.
In my judgment, elegantly though the application has been presented, for which we are grateful to Mr Mercer QC, it is hopeless and, for that matter, Totally Without Merit. I agree with Supperstone J and all three of the defendant's answers to the claim. My very brief reasons follow.
The claim is unarguable:
The Majority Judgment in Miller said this at para.82:
“We cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.”
Later, the Majority Judgment continued as follows:
“(121) […] the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation.
(122) What form such legislation should take is entirely a matter for Parliament […] The essential point is that […] the Act can only lawfully be carried out with the sanction of primary legislation enacted by the Queen in Parliament.”
Legislation duly followed, in the form of the European Union (Notification of Withdrawal Act) 2017, (“the 2017 Act”), described in the Long Title as: “An Act to confer power on the Prime Minister to notify, under Art.50(2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU.” S.1 is headed: “Power to notify withdrawal from the EU” and, s.1(1) reads as follows:
“The Prime Minister may notify, under Art.50(2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU.”
The change in the law with which Miller was concerned involved invoking Art.50 of the Treaty; in short, a decision to withdraw from the EU, accompanied by notification of doing so. The legislation was intended to give effect to the decision in Miller. Its authorisation to the Prime Minister to notify under Art.50(2), plainly contemplated and encompassed the power to take a decision to withdraw and conferred that power expressly on the Prime Minister; there would indeed be no point in notifying under Art.50(2), absent a decision to withdraw under Art.50(1).
The matter is put beyond argument by the Prime Minister's letter of 29 March 2017, (“the Prime Minister's letter”), notifying the European Union of the United Kingdom's decision to withdraw under Art.50(2) of the Treaty. This letter in includes the following passage:
“On 23 June last year, the people of the United Kingdom voted to the leave the European Union […] that decision was no rejection of the values we share as fellow Europeans […].
Earlier this month, the United Kingdom Parliament confirmed the result of the Referendum by voting with clear and convincing majorities in both of its Houses for the European Union (Notification of Withdrawal Bill.) The Bill was passed by Parliament on 13 March and it received Royal Assent […] and became an Act of Parliament on 16 March.
Today, therefore, I am writing to give effect to the democratic decision of the people of the United Kingdom […].”
Even putting the Referendum to one side, this is the language of decision not of notification alone, in vacuo, so to speak. The Prime Minister's letter itself contains a decision; backed by the authority of the 2017 Act, that decision complies with the requirements of Miller. No additional UK constitutional requirements remained to be satisfied. I reject the argument that additional formality was required under the UK constitution or that there was any requirement for the Art.50(1) decision to be in some separate document from the Art.50(2) notification.
In my judgment, the contrary is unarguable, so that the claim is doomed to fail on the merits.
For completeness, it is noteworthy that the claimant has nowhere identified the body which, on its case, should take the “decision” to withdraw, which it contends remains lacking.
For the avoidance of any doubt, we do not reach our decision on the basis of the defendant's submission that Art.50(1) confers no rights on individuals and we express no view on that submission.
The claim is out of time:
Mr Mercer put his argument under this head on three bases: (i) the negotiations were ongoing so that the claimant was not out of time; (ii) the defendant's case had remained unclear until November 2017, so that, again, the claimant was not out of time; (iii) given the public importance of the matter, there were good reasons for extending time.
This issue can be dealt with summarily. Notwithstanding the...
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