The Queen (on the application of Liberty) v The Prime Minister
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon,Sir Terence Etherton MR,Dame Victoria Sharp DBE |
| Judgment Date | 22 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1761 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/2542 |
| Date | 22 October 2019 |
[2019] EWCA Civ 1761
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
The Honourable Mr Justice Supperstone
CO/3508/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
THELORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RIGHT HONOURABLE The Lord Burnett of Maldon
THE MASTER OF THE ROLLS
THE RIGHT HONOURABLE Sir Terence Etherton
and
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
THE RIGHT HONOURABLE Dame Victoria Sharp DBE
Case No: C1/2019/2542
and
Richard Hermer QC, Zoe Leventhal and Edward Craven (instructed by Liberty) for the Applicant
Sir James Eadie QC, David Blundell, Christopher Knight and Richard Howell (instructed by Government Legal Department) for the Respondent
Hearing dates: 18 October 2019
Approved Judgment
The Lord Burnett of Maldon CJ, Sir Terence Etherton MR and Dame Victoria Sharp DBE PQBD:
This is an application for permission to appeal against a case management decision of Supperstone J made on Friday 11 October refusing an urgent hearing of Liberty's claim for judicial review against the Prime Minister based upon the claimant's contention that he may act unlawfully by reference to his obligations under the European Union (Withdrawal) (No 2) Act 2019 [“the 2019 Act”]. By that claim Liberty seek a declaration that the Prime Minister:
“… may not take any step which is intended, anticipated or likely to result in the European Council responding to a letter sent pursuant to section 1(4) of the European Union (Withdrawal)(No. 2) Act 2019 by declining or refusing to agree to an extension of the period under Article 50(3) of the Treaty on European Union”
Mr Hermer QC was pressed in oral argument to explain whether it was Liberty's case that the Prime Minister was prohibited by law from stating his honest belief that it is not in the best interests of either the United Kingdom or the European Union for the date on which the United Kingdom leaves the European Union to be extended beyond 31 October 2019. That is the current date mandated by statute and also by the law of the European Union. He submitted that “everything turns on intent” or “it turns on intent not substance”. Liberty recognise that the Prime Minister may articulate any arguments in Parliament free from interference by the courts, but its position is that he should be restrained from repeating them outside Parliament if he intends his remarks to influence the decision of the governments of the other member states of the European Union to decline an extension.
The ordinary course when seeking to reverse a decision made on paper in the Administrative Court is to seek an oral hearing, rather than to appeal to the Court of Appeal. No procedural issue was raised before us. There is no doubt that the Court of Appeal has jurisdiction to entertain the application without an oral hearing having taken place below. It is, however, an exceptional course that can be justified only by extreme urgency.
Supperstone J refused to order an early oral hearing because similar proceedings had been heard in Scotland at first instance and on appeal and a further hearing was imminent. The Inner House of the Court of Session will sit on Monday 21 October to hear any argument which might arise in the light of events since it delivered judgment on 9 October 2019 refusing relief.
We heard the argument on Friday 18 October. At the conclusion of the hearing we refused permission to appeal. We indicated that we were satisfied that Supperstone J had made no error of principle, nor did he act outside the proper limit of judicial discretion, in making the case management decision under challenge. These are our reasons for coming to that conclusion.
On 9 September Liberty issued proceedings in the Administrative Court against the Prime Minister. That was the date on which the 2019 Act received Royal Assent. The proceedings anticipated that the Prime Minister would fail to comply with the statutory duty found in section 1(3) and 1(4) of the 2019 Act to seek from the European Union an extension of membership for the United Kingdom beyond 31 October. That duty would arise on 19 October 2019 if Parliament failed to approve a withdrawal agreement between Her Majesty's Government and the European Union or failed to pass a motion that the United Kingdom should leave without an agreement. The proceedings also raised the issue of what is known as “the frustration principle”. For the purposes of this judgment it is unnecessary to explore the precise boundaries of that principle or its application to the 2019 Act. It is sufficient to note that, in broad terms, it prohibits ministers from frustrating the purpose of a statute or a statutory provision, which it is for the court to determine. An application for urgent consideration was refused on 9 September as totally without merit.
The main concerns underlying the proceedings were that the Prime Minister might not comply with the duty no later than 19 October “to seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty of the European Union ending at 11.00 pm on 31 October 2019 by sending a letter to the President of the European Council” as required by section 1(4) of the 2019 Act, or that he would work to secure the opposite outcome.
Proceedings had been commenced in Scotland in mid-August. A fresh petition was issued in the Court of Session on 1 October 2019 which raised the same two arguments.
On 7 October Lord Pentland, sitting in the Outer House of the Court of Session, dismissed the applications before him: Vince and others v The Right Honourable Boris Johnson MP and Lord Keen of Elie QC [2019] CSOH 77. On 9 October the First Division of the Inner House of the Court of Session delivered its opinion on a reclaiming motion (appeal) from his decision: [2019] CSIH 51. It upheld his order. In delivering the opinion of the Inner House, Lord Carloway at [11] observed that given the conclusion reached by the Inner House the normal course would be to refuse all relief or dismiss the petition. It would be inconvenient, however, were the Petitioners required to issue fresh proceedings in the event that the legal position changed, in particular over the weekend of 19 October. For these reasons the matters before the court would be given further consideration on 21 October [12].
Mr Hermer submitted that events might move so quickly over the weekend that it would be too late by Monday for effective relief to be granted. He also submitted that the proceedings in Scotland were not the same as those started by Liberty in England and that, as a fall-back position, the Scottish courts were wrong to decline the relief sought by the Petitioners to the Court of Session. In those circumstances he submitted that we should grant permission to appeal the order of Supperstone J, allow the appeal and then reconstitute ourselves as a Divisional Court of the Queen's Bench Division and determine the claim for judicial review immediately.
In BPP Holdings v HMRC [2017] 1 WLR 2945 at [33] Lord Neuberger stated that there was a “high hurdle” to overcome before an appellate court could interfere with a case management decision. The Supreme Court endorsed the approach of Lawrence Collins LJ in Walbrook Trustees (Jersey) Limited v Fattal [2008] EWCA Civ 427 at [33]:
“An appellate court should not interfere with a case management decision by a judge who has applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”
The Scottish Proceedings
In his opinion at [5] and [6] Lord Pentland identified the orders being sought by the Petitioners:
“[5] Head (i) seeks an interdict [an injunction] against the [Prime Minister] and any minister of the Crown (and anybody acting on their behalf or at their request) from taking any action that would undermine or frustrate the will of the UK Parliament as enacted in the 2019 Act, particularly (but not restricted to) (a) sending any document, message or statement alongside the letter required to be issued under section 1(4) of the 2019 Act which suggests that the UK's intention is anything other than that set out in the letter; (b) delaying or otherwise causing the letter sent under section 1(4) not to be received by the President of the European Council; and (c) encouraging (or causing to be encouraged) any other EU Member States either directly or indirectly to disagree with any proposed extension of the period under Article 50(3) of the Treaty of the European Union.
[6] Head (ii) seeks an order … ordaining the [Prime Minister], in the event that neither of the conditions in subsections ( 1) or (2) of section 1 of the 2019 Act has been fulfilled by 11 pm on 18 October 2019, to sign and send the letter referred to in subsection (4) prior to 3.00 pm on 19 October, without any amendment, alteration or addition, either within the letter or in any separate letter, note, addendum or message, and to take all necessary steps to achieve the extension of the period under Article 50(3) of the Treaty of the European Union due to end at 11pm on 31 October 2019.”
The orders sought as set out in [5] and [6] include many features not found on the face of the 2019 Act. It was Lord Pentland's opinion that “the obligations created by the 2019 Act do not extend beyond taking the particular steps set out in the legislation in the event that the conditions referred to are not satisfied” [21]. At [36] he summarised the Advocate General's answers to the...
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