TAP – I have a copy of the 39 page Court application from Robin Tilbrook. This is for real and is a very strong case.
Essentially the Government tried to delay Brexit from coming into force by amending The Withdrawal Act 2018, which is not the Act which specifies the date of Britain’s exit from the EU. It is not the Act which complies with the requirements of Article 50 of the Lisbon Treaty.
The 2018 Withdrawal Act was a supplementary Act which only specifies details of which European Laws will cease to apply on ‘exit day’, and which will not cease to apply due to their being incorporated into British law. It is titled as ‘An Act to repeal The European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.’
The date of the application of the 2018 Act could only be amended to match alterations in the date of Brexit which must be made by addressing the 2017 Act, as that is the Act which complies with the requirements of Article 50 of the Lisbon Treaty.
The Government could only change the date of Brexit through complying with the terms of The Withdrawal Act 2017, in fact by superseding it with a new Act. Article 50 specifies that the withdrawing country must comply with its own constitutional requirements. The 2017 Withdrawal Act only empowers the Prime Minister to notify Britain’s withdrawal under Article 50. There is no provision within the Act for any extension to be made by the Prime Minister. Another Act Of Parliament was required if the date was to be delayed. Yet there wasn’t one. So the delay negotiated by British officials is Ultra Vires, null and void.
The Government’s other attempt to get round the requirement for an Act Of Parliament was to claim that the extension to Brexit Day was being made under the Royal Prerogative. This flies in the face of the recent decision R (on the application of Miller and another) – v – Secretary for Exiting The European Union (2017) which held that the Withdrawal Statute fully displaced any residual rights to use prerogative powers.
This looks like an open and shut case.
The Government is trying to shut the door on it as quickly and aggressively as it can, by stating that the request is for a Judicial Review of the actions of a government officer but that no specific action has as yet been provided in the claim which can be reviewed. This is a weak line to be taking as there are a few such actions which can be detailed by the applicant.