The day I tried to save Brexit

Another exciting episode in my courtroom drama of a life

Mentle J

As reported here on Tuesday 9th April 2019, I suspected then that the Prime Minister might purport to revoke the UK’s article 50 notice to leave the EU before exit day, then defined as Friday 12th April 2019 at 23:00.  That is, if the Council didn’t give her an extension that night (which, in the event, the Council did).

I therefore attended the Royal Courts of Justice on Wednesday 10th April, clutching these papers.  I was seeking an emergency injunction to prevent the Prime Minister from canceling Brexit off her own bat.  There had been dangerous talk on the BBC news since the Sunday of that week (when I’d listened to Radio 4 online in Bucharest) that led me to fear that summary cancelation of Brexit on the Prime Minister’s part might be her back-up plan if denied her extension.

I have recently obtained a transcript of what was said in court that day.

IN THE HIGH COURT OF JUSTICE – QUEEN’S BENCH DIVISION

Courtroom No. 37
The Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday, 10th April 2019

before

THE HONOURABLE MR JUSTICE DAVIS

ALLMAN
– v –
THE PRIME MINISTER

THE CLAIMANT appeared IN PERSON
NO APPEARANCE by or on behalf of the DEFENDANT

———-
WHOLE HEARING
———-

Case called.

MR JUSTICE DAVIS: Now, Mr Allman, I have read the witness statement you have provided. I understand that you did attend the administrative court office, and they told you to come here, is that right?

MR ALLMAN: They told me that as… in their capacity as the administrative court they could only deal with the judicial review application.

MR JUSTICE DAVIS: Yes.

MR ALLMAN: The particular circumstances that I’m in, My Lord, are that I believe that the Prime Minister may be intending to act illegally, and the balance of convenience requires that that is prevented rather than allowed to happen, followed by a judicial review, which would be found to be constitutionally messy.

MR JUSTICE DAVIS: Right. I am sorry to interrupt. What is your cause of action against the Prime Minister?

MR ALLMAN: Right. I haven’t made a claim against the Prime Minister.

MR JUSTICE DAVIS: No?

MR ALLMAN: But I find myself in the situation, My Lord, where I have reason to believe from media reports that the Prime Minister is intending to revoke the Article 50 notice that has been given to the European Union of the United Kingdom’s intention to leave the European Union –

MR JUSTICE DAVIS: Yes.

MR ALLMAN: And that she may well intend to do that purporting to be able to do that under the Royal Prerogative. I say that the authority in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 in which 20,000 pages were taken, and the judgment extended to 297 pages, in the Supreme Court alone, which was also judged in the first instance [and] at the Court of Appeal, that that Miller precedent, that this type of thing, such as giving an Article 50 notice, or revoking it, requires an Act of Parliament to enable the executive, in other words the Prime Minister, to do that. It cannot be done under the Royal Prerogative.

MR JUSTICE DAVIS: Yes –

MR ALLMAN: Now I cannot argue that in full. This is an interim, ex parte hearing, and I am saying that if Mrs May does not get her deal, today, from the council of ministers because one attending minister vetoes it, then there are two possibilities: the UK will leave the European Union at 11pm on Friday. That’s two days from now. The other possibility is that it won’t, because the Article 50 notice is revoked. Those are the only two possible outcomes and the correspondence of which I have become aware since drafting those papers, in connection with the judicial review that the political party English Democrats is conducting, the pre-action correspondence in that makes it clear that the government position is noncommittal as to whether the government believes that it has the right to revoke Article 50 using the Royal Prerogative without enabling legislation in the form of an Act of Parliament.

MR JUSTICE DAVIS: Right.

MR ALLMAN: I believe that there is substantial, significant risk that this will happen if Mrs May does not get her deal, or at any later time, and, therefore, I am asking you, because this is a matter of the utmost gravity, that you issue an interim injunction prohibiting the Prime Minister from revoking Article 50 notice, unless this is with the authority of primary legislation. I’m saying that the trouble that you will cause by not giving that is a lot less… sorry, a lot more than the trouble that you would cause if you gave that injunction.

In the alternative, My Lord, because I am not a lawyer, I’m just a litigant in person, and I had no idea on Sunday that I was going to be doing this today because things that I have heard on the news that have shocked me, I never anticipated. But here we are, in this situation, and it may be that you can suggest that an adequate remedy would be a declaration, which a higher judge may overturn, I understand that My Lord, that without statutory authority, just as you cannot give Article 50 notice without statutory authority, so without statutory authority, you cannot revoke it, no matter that things didn’t go well today on the mainland of Europe.

MR JUSTICE DAVIS: I am sorry to go back to what I asked a few minutes ago. What is your cause of action against the Prime Minister?

MR ALLMAN: Okay, well if you look at the final paragraph I mentioned, Section 37 of the Senior Courts Act, protection of my legitimate interests. I’m going to get my papers out.

When somebody applies for an injunction that is the statutory criterion for whether you give it or not.

MR JUSTICE DAVIS: Yes, but the point is this: this is the Queen’s Bench Division, and I can grant injunctive relief. Sometimes proceedings will already have been begun, sometimes it’s on the basis that it is very urgent and there is an undertaking that proceedings will be begun, but either way, I have got to have in mind that there is some cause of action, some kind of proceedings that could be taken by the individual in this case against the other side. I do not see that you have got an ordinary cause of action against the Prime Minister.

MR ALLMAN: Well, it’s not a very ordinary situation, My Lord, but, if you look at the case Miller, I haven’t read the pleadings in that case, I’ve only read the judgment, but in that –

MR JUSTICE DAVIS: Yes, I am sorry to interrupt. Miller was in the Administrative Court, it was a divisional court that heard the original application, albeit that it was three judges, senior judges, but it was a divisional court because it was an application for judicial review.

MR ALLMAN: But it was an application judicial review for a decision that had not yet been taken. A purported decision to give notice under Article 50 by virtue of the authority of the Royal Prerogative, and the court said you can’t do that.

MR JUSTICE DAVIS: Yes, I follow that, but what I am saying is that the nature of the proceedings was judicial review, that is, in the Administrative Court. You have come to me as the duty Queen’s Bench judge, so people have been coming in during the day, who want to overturn the decision of a lower court judge, or who are taking proceedings against somebody and they want their interests protected pending the final decision, and so on and so forth.

You have got no… you could not go off to the court office now and start proceedings against the Prime Minister, because there is nothing to take proceedings about.

MR ALLMAN: So, what did Miller do, My Lord? Because that was a hypothetical situation, and the court ruled if the government purported to give Article 50 notice under the Royal Prerogative it was exceeding its power, and I am saying that if the government seeks to revoke Article 50 under the Royal Prerogative it will be exceeding its powers.

MR JUSTICE DAVIS: Well –

MR ALLMAN: And shall we wait till Friday when they’ve done that, My Lord?

MR JUSTICE DAVIS: Well, I am sorry, I am sure it is me not making myself plain. Mrs Miller or Ms Miller, whatever she is, took her proceedings as in the divisional court, the administrative court, for judicial review, of what was understood to be the position, namely that the Prime Minister asserted, I mean, there was no doubt about it, she asserted that she was entitled to proceed without any parliamentary authority, per se. It was an executive decision, and, therefore, Gina Miller sought declaratory relief, and she got it, both in the divisional court, and in due course, the Supreme Court.

You come here to me as the Queen’s Bench duty judge, and I am asking, if I were to ask you, require you to go and file your particulars of claim against the Prime Minister, well, you have not got a claim against the Prime Minister, you, personally. This is an issue of whether there is the power of the court to review the position.

MR ALLMAN: Well, My Lord, if I may point out that, although I didn’t know this when I drafted this witness statement and the application for the injunction, I have since learned that the government asked the direct question as to whether a statute was sufficient to revoke the Article 50 notice, or whether the Royal Prerogative would be adequate, that which used to be called the treasury solicitor in other proceedings gave an unclear answer, certainly raising the suspicion that the government is trying to keep open the option of revoking the Article 50 notice between now and 11.00pm on Friday night.

MR JUSTICE DAVIS: Well –

MR ALLMAN: I am saying that must be stopped if the courts are capable of taking a robust enough approach, because it would be illegal.

MR JUSTICE DAVIS: Well, I am offering no… at the moment I am not going to offer any view. If there is a court that is capable of doing that, it is not this one. You are in the wrong place. As I was saying, I am the duty Queen’s Bench judge, and I am here to engage in judgments about proceedings by entities be they individuals or corporations, against other individuals or corporations, in order to protect private rights.

Now what you are seeking to do is to establish a constitutional position, and I am not decrying that aim, but you are in the wrong place. You need to apply for judicial review and apply for interim relief as part of your application for judicial
review.

MR ALLMAN: Thank you.

MR JUSTICE DAVIS: I mean, I do not know what Mrs Miller, I do not suppose she needed to apply for interim relief, I think the government undertook not to take any steps until the conclusion of the proceedings.

I will say this: my understanding of Mrs Miller’s litigation is that the court, both the administrative court and the Supreme Court, came to the conclusion that because invoking Article 50 would have the, as it was then believed, inevitable consequence that the treaty rights of people in this country would be affected, and the rights under European legislation would be affected, that had to be done by parliamentary bill, rather than executive action.

It rather seems to me the opposite would apply if Mrs May was seeking to restore the status quo ante. That is just my personal opinion, I may be wrong about that, but what I am sure about is the only way you can pursue this is by applying for judicial review, and within that application, applying for interim relief, and that is something you do at the administrative court office.

I mean, here, you see, you have got, this is the right form, you will probably need to start again with it. You need to set out, by reference to your statement, what decision it is, or potential decision it is, you want reviewed, and why, and then the interim relief is to prevent the Prime Minister from doing what you say she is going to do before the court has had a chance to rule.

MR ALLMAN: Can I say there’s a very significant risk of it, My Lord, and that it would be illegal.

MR JUSTICE DAVIS: Well, then, you –

MR ALLMAN: I take your point and, in your situation, I would probably want to do exactly as you’ve done, and to suggest that I should take the steps I’m trying to step via the means, and I don’t require you to make a formal judgment…

MR JUSTICE DAVIS: All right, well that is very kind. It is now 2.45pm. If you want to get this thing underway today, you need to get back to the administrative court office pretty smart-ish.

MR ALLMAN: I think it’s probably not likely to be possible to draft it adequately in that time. I’ll probably have to do it first thing in the morning.

MR JUSTICE DAVIS: Well, if you do it first thing in the morning, and you log it with the administrative court office, they have a duty judge, who is obliged, if it is made clear that it is something of extreme urgency, to consider any application for interim relief, literally on the same day.

MR ALLMAN: Okay. Might I ask you to make an order that I had applied to the wrong court but that you ruled that when I applied to the right court, this ought to be considered as a matter of urgency. That would seem a fair thing to ask of you My Lord.

MR JUSTICE DAVIS: Well, I am very sorry, it is… I am not going to make that order because it would be pointless. I am telling you, if you go to the administrative court office, and say, this is a matter of extreme urgency, I require this to be dealt with, and they have little stickers they put on the case depending on how urgent it is, and the most urgent is within two hours. If you say this is urgent, it will certainly be dealt with tomorrow by the duty judge.

MR ALLMAN: Thank you, thank you, My Lord. There was one last request.

MR JUSTICE DAVIS: Yes?

MR ALLMAN: Would it be possible for me to obtain a transcript of this hearing at public expense?

MR JUSTICE DAVIS: No.

MR ALLMAN: Thank you, My Lord.

MR JUSTICE DAVIS: All right. Thank you very much. Thank you.

Court rises.

 

I spent the Wednesday evening drafting an amateurish judicial review application ready for the following morning.  I awoke to the news that Mrs May had got her extension.  My efforts would not be needed after all, at least not until closer to the new exit day, 31st October.  I am presently awaiting a response from the government to my pre-action correspondence, for this proposed judicial review that I hope will not be necessary after all.

Following the news coverage of the Brexit chaos that particular week, I believe my fear was well-founded that the Prime Minister might well have purported to cancel Brexit altogether using the Royal Prerogative, if the Council had not granted her the extension to 31st October in the small hours of the morning of the day before exit day as it was defined then.  My panic application to the wrong court turned out to be unnecessary, but I do not accept that it was a waste of time.  Applying the valuable lessons I was able to learn from the fruitless court hearing documented above, I am presently awaiting the responses of the government and various law firms and chambers, respectively, to my pre-action correspondence and my applications for legal help and/or representation.

Later, I may find myself back in court, trying to make sure (if necessary) that no future Prime Minister takes the unlawful action of canceling Brexit without an enabling Act in the days leading up to 31st October, of which there will be a risk, if the Parliamentary deadlock remains, no enabling legislation has by then been enacted allowing Brexit to be canceled lawfully, and the Council refuses a future request for a further extension beyond 31st October.