On whether and why the Article 50 Bill is flawed

On the day the Government published its Article 50 Bill I wrote this piece setting out what seemed to be a technical flaw in the Bill.

In the following sub-paragraphs, I set the argument in its broader context. But in reading that context it will be helpful if you bear in mind the structure of Article 50, paragraph 1 of which requires a decision to withdraw in accordance with our constitutional requirements; and paragraph 2 of which requires notification of that decision:

(1) what the Bill – now of course an Act – does do is authorise the Prime Minister to notify the EU that we intend to leave the EU;

(2) what it does not do is make a decision that we should leave the EU;

(3) you search for such a decision in vain. Even if you extend your search beyond the Act. Despite what David Davis asserted in debates in Parliament, the Supreme Court was very clear that the Referendum was not legally a decision to withdraw. In private correspondence, the Brexit Secretary has pointed to facets of the broader political context but he has not pointed to any decision;

(4) the reason the Referendum was not a decision to withdraw is because, in enacting it, Parliament chose to make it advisory;

(5) the Supreme Court judgments do not demonstrate a laser-like focus on whether they are addressing the Article 50.1 limb (the decision to withdraw) or the Article 50.2 limb (the notification of that decision). The (likely) reason for this is that the Claimants decided – and eventually the Government agreed – that for the purposes of the point before the Supreme Court the difference between the two was only formal;

(6) however, the structure of Article 50 is quite clear: it is only the decision that need be made in accordance with our constitutional requirements. There are no formalities governing the notice itself – it could be made via a tweet; and

(7) remember point (6) and the Supreme Court judgments are brought into some focus. In addressing, as they do, what our constitution requires they must (primarily) be concerned with the decision rather than its notification.

This sequence of reasoning has animated a number of campaigners. Might it have as a consequence that, legally speaking, the Article 50 clock has yet to start because we have yet to decide to leave. And that what was notified to Donald Tusk was a nothing? So that Parliament would have now to choose whether we want to leave the EU?

I’ve sat apart from those discussions for various reasons. One of them was that I hadn’t understood why the Government did things in this way? Why did it not enact a decision? Why no section 1(1) of the European Union (Notification of Withdrawal) Act 2017 saying: “The United Kingdom intends to withdraw from the European Union”?

It is inconceivable to me that this omission was accidental. The short Act is drafted with some care. By way of simple illustration I spent some time with a leading Constitutional Law QC examining whether it was effective to notify a decision to withdraw the United Kingdom from Euratom before concluding that, despite initial appearances, it was.

But here’s a speculation and one – I think – that has the ring of truth.

If you were determined to leave the EU you would not want the decision to do so to be sourced in an Act of Parliament. After all, a thing that is done by MPs can be undone by MPs. But source that decision in the Referendum, source it in ‘the will of the people’, and it cannot be undone otherwise than by the people whose future will you could then choose to mute. And the fact that, legally, in the Referendum the people had not decided to leave but simply to advise Parliament, well, that would be a nuance too far for Parliament. It would lack the will or the courage or the perspicacity to seek to amend the Bill to introduce a decision to leave.

It takes no great effort for me to imagine a conversation between David Davis and James Eadie QC (First Treasury Counsel and the Government’s key legal advisor). Davis says that for his own reasons he wants the Act not to make the decision to leave the EU. Eadie responds by observing that to do so would leave the Act with a technical flaw. Davis says that, surely, no judge would dare declare the withdrawal notification a nullity. Surely?

And what does Eadie respond? Well, someone will have to go to court to find out.

 

 

 

 

27 thoughts on “On whether and why the Article 50 Bill is flawed

  1. As an entertaining discussion over dinner in the Inns of Court, or as a legal puzzle in the bar exams in 2070, this is fine.

    But any Remainer who thinks that Brexit can be stopped by a legal technicality is on another planet. At most it would require another hoop to be gone through (same with whether we are leaving the EEA or whether we need to – gasp! – write a separate letter).

    Politically, the decision was made in the 2016 referendum, a public statutory vote with a turnout higher than any recent general election. Before the vote politicians told the electorate that it was for real – their will would be done. Whatever its legal status, the referendum result is politically binding.

    Brexit can only be stopped by a democratic act where the will of the people is seen to have changed. Given that we started the process with a referendum only a referendum on the terms has the political authority to change course.

    After the shock of the referendum result, most active Remainers thought that the people could not be trusted with the decision. MPs should just vote Brexit down; they didn’t. A general election would resolve the issue; we now have close on 600 MPs elected on a Brexit manifesto. Now a court decision is to stop the process. It won’t, even if it finds the argument legally sound.

    As democrats, we have to persuade the people to our way of thinking. Accept the 2016 result – but see it as provisional until there is a plan. Then have a referendum on the terms. Focus our campaigning not on false hopes but on persuading MPs to amend the ‘great repeal bill’ to provide for a referendum on the terms with the option to Remain. And on * persuading * people to vote Remain, not just on setting their views aside.

  2. “The prime minister may notify… the United Kingdom’s intention to leave the EU”.

    Seems to me that, at the very least, Parliament is acknowledging that the decision has been made, if not making it itself.

    There were no conditions (e.g. “If the UK decides, the PM may…”) and no indication that the intention hasn’t yet been reached (“The PM may notify any decision of the UK to leave”).

    Without any such conditions, the Act either contains an implied decision (or ratification of an earlier executive decision) or it incomplete nonsense.

    For brevity, the draftsman is entitled to draft on the basis that the courts will choose the interpretation which gives efficacy to the statute rather than interpret it in a way which creates nonsense.

    It simply cannot be the case that Parliament intended to give the PM the power to perform a nullity, especially without any guidance on the mechanism which would need to be followed to perfect the situation. What would be the purpose in Parliament going to the trouble of passing an Act to do half the job when the Supreme Court is clear that Parliament needs to do the other half? If it wanted to pass a later ‘decision Act’ it could have just put the notification power in that and saved itself the trouble of passing two Acts.

    I know you’re not arguing for this interpretation, Jo, but it really is being given more attention than it deserves among commentators IMHO. To me it’s hopeful in the extreme.

    I don’t disagree with your central point that this was deliberate and somewhat sneaky.

  3. I am no lawyer, my previous comment was about politics and how useful a legal decision would be in campaigning.

    But separately, l think it would be helpful if you or another lawyer would set out what the legal counter-argument is.

    The question in my mind is whether in a highly efficient manner the Article 50 bill wraps up the decision to leave with the decision to send the letter.

    Judges may read Hansard to see what was in the legislature’s mind when it made the law. No-one in the Parliamentary debates thought they were doing anything other than authorising withdrawal. No MP or peer thought they were putting something on the statute book that might come in handy just in case the UK ever happened at some point in the future to decide to leave the EU.

    Would that be relevant?

  4. I think it is absolutely right and fair to say that there is a powerful counter-argument that the Act implicitly contains the decision to leave. My own view – as I have stated on a number of occasions on twitter – is that that argument on balance succeeds. But it is also perfectly reasonable to contend that the Act predicates (rightly or wrongly) that a decision has already been made. Here, for example, is what David Davis said to the Commons when debating the (then) Bill: ” It is not a Bill about whether the UK should leave the European Union or, indeed, about how it should do so; it is simply about Parliament empowering the Government to implement a decision already made—a point of no return already passed” (https://goo.gl/uwqz1p).

  5. I’m no lawyer either, but I can’t help thinking about legislation which is enacted but never implemented. If our government over the Article 50 period is incapable, could it just be that we default to an arrangement the EU proposes? I am sure there are terms on which they would like the UK to remain in the EU, so could they not propose these, allowing us to leave our triggering of Article 50 as a dead letter?

  6. And perhaps the decision was simply taken in Cabinet, minuted, and then acted upon?

  7. First, that’s not what’s contended for by the Government in private correspondence. Second, the Miller case suggests that it wouldn’t meet our constitutional requirements.

  8. Putting to one side the legal merits of any prospective claim based on this argument, it strikes me that there are really only two reasons why you would want to pursue this:

    1) To reverse Brexit; and
    2) To delay Brexit until the Government take the necessary remedial steps to address the issue.

    The General Election suggests that there no appetite for reversing Brexit. In the absence of any clear and demonstrable shift in public opinion, I wonder how one can make the case that Brexit “should” be reversed, even if there are legal deficiencies in the way in which the Article 50 process has been executed.

    If the intention is to delay Brexit, one might reasonably ask why? If is it to await the necessary shift in public opinion such that Brexit might then be reversed, I fail to see how this might be achieved in the likely 3-6 month delay. Indeed, these kind of technical arguments are perhaps more likely to have the opposite effect, inevitably re-igniting the “saboteur” and “enemies of the people” narratives and taking attention away from the necessary work now required in understanding the important issues at stake and actually crafting a workable and achievable strategy for leaving. This is possibly more important at the moment as the political consensus seems to be shifting toward a softer Brexit.

    If the intention is to allow the Government more time to develop their strategy, given how little the Government have achieved in the past year I fail to see how 3-6 months would make much difference. You also risk irritating the EU’s negotiators whose patience is surely wearing thin, particularly if the UK is perceived as having purposefully engaged upon some kind of technical sleight-of-hand to gain a marginal advantage in talks. What about the impact on the Government’s credibility if they are seen to have botched even this most simple of administrative tasks?

    The degree of uncertainty around Brexit is already damaging consumer confidence and causing businesses to activate contingency plans. An additional court proceeding which might result in the process being reset or stalled indefinitely would surely introduce additional uncertainty.

    I think we are now at the stage where these kind of legal and technical arguments on supposed deficiencies in the referendum and Article 50 process must be put to bed.

    The only way that Brexit can be satisfactorily and, perhaps most importantly, permanently reversed is through the political process.

    As Remainers, that is where we should begin to focus our energies.

  9. Is it not significant that the Act confers a power, rather than imposing a duty? The argument for the Act being itself the decision itself is more difficult to run if, as is the case, the PM can simply ignore it; given that the decision must be communicated to the EU to be effective. If the intention was simply to let her give the notification at a time of her choosing, that requires her to be given a discretion when to notify.

    In practice, the effect was that the PM ended up making the decision – but did the Act give her power to do that?

  10. It seems to me that the best thing for remainers is for us to leave very quickly so we can get on with campaigning for the UK to join the EU.

  11. I wrote to the PM asking for her reasons for the decision to “exercise the power given by the 2017 Act”. When the DExEU got round to replying they referred to an announcement about the timetable by the PM on 2 October and the explanatory notes to the bill.

  12. Noting that Guy Verhofstadt is now suggesting that if the UK takes up it’s offer to rejoin before the deadline, we would lose our various opt outs. So if we really didn’t manage leave…

  13. The Supreme Court in Miller decided to completely skirt the issue. Instead they relied on the High Court’s opinion that if notification was given then a decision would have to be made. Importantly though both courts were of the opinion that the referendum was not a constitutional decision. The Supreme Court were well aware, as I’m sure were the government, that any decision could be open to a public law challenge for example to impacts of Brexit on EU nationals. The Supreme Court therefore ignored the whole question, whilst the Government wrote a bill to circumvent any challenge by not being culpable for the decision.

    A legal decision has not been made. The notification bill should have been written before the referendum, it would read exactly the same if it had been assented to on the 22 June as the 24th June.

    But the question is what can one do about it? The Prime Minister has been given immunity by Parliament, so it is neigh in impossible to challenge her. But what about the EU Council? Article 50 is EU law. It is plainly obvious that no decision has been made – so a case against the EU council for accepting notification stands a pretty high chance.

    Would such a case be able to be brought at the EU General Court? What are the time limits for such a case?

  14. @Michael

    Would it really be politically impossible to abandon Brexit? Perhaps we can all agree that this would be about as likely as Jeremy Corbyn becoming prime minister.

  15. I have a copy of a letter from the Department for Leaving the EU which states that the decision has already been made. It wasn’t addressed to me, but I’m sure I can get the addressee’s permission to forward it to you if you want to see it.

    What I’m particularly interested in is whether, if it’s determined that the decision *was* made (by the PM, or anyone else), whether that permission was undertaken in accordance with administrative law. In particular – whether the PM unlawfully fettered her own discretion by delegating the decision to the people, or alternatively, failed to exercise proper discretion by giving sole regard to the outcome of the referendum (as evidenced by numerous statements about ‘the will of the people’ as well as the letter from the DFLEU), incorrectly characterising it as binding rather then advisory. It’s a long time since I studied constitutional law, but it seems to me this is worth investigating.

  16. Your first respondent says we “now have 600 MPs elected on a a brexit manifesto” – I take issue with that – we don’t. The position of the Labour party was deliberately fudged ( it was impossible) & in many constituencies they were the only real alternative to a Conservative. It is dangerous to allow this assertion to go unchallenged. I voted Labour for an A50 rebel who explicitly voted against the triggering of brexit. Many simply voted Labour in the hope they would be more flexible, as it was the most likely way to get a non-Tory elected.

  17. It looks to me like a cunning plan. The government won’t admit it but they secretly want to keep open the possibility of abandoning Brexit. They couldn’t rely on the Dublin case resulting in them simply being able to withdraw notification and everything returning to normal. They didn’t like GvH’s suggestion that we could rejoin but lose our opt-outs. So they needed another ruse. They have therefore deliberately created the opportunity that if it becomes politically expedient, they can simply say to the EU “Oops, sorry, our Article 50 notification was invalid. It never happened. Everything since then is like Bobby Ewing’s dream.” Very cunning.

  18. Paul, you say “Guy Verhofstadt is now suggesting that if the UK takes up it’s offer to rejoin before the deadline, we would lose our various opt outs”

    I do not think that quite works. The deadline is presumably the Article 50 deadline. We cannot rejoin before the deadline because we will not have left.

    The choices are either

    (1) unilaterally withdraw the notification – in which case we stay members as now with our opt-outs (though perhaps not with the Cameron agreement)

    (2) withdraw the notification by agreement with the EU27 – then we would need to negotiate the terms of their agreement. But this option is only needed if (1) is not available. We’ll ask Jolyon to explain to the EU27 why (1) works and let them take us to the ECJ…

    (3) we leave the EU and rejoin later. No optouts unless we negotiate any.

  19. Fish in a hat
    It is hard to find anything in the Labour manifesto that suggests they are against Brexit:
    “Labour accepts the referendum result ”
    Labour will “seek to unite the country around a Brexit deal …”
    Labour will “replace [May’s white paper] with fresh negotiating priorities…”
    I got bored with copying, you can read it all at pages 24+
    Your rebel may be against Brexit, but s/he is a rebel against the party line. If you – and the many other Labour Remainers – wish Labour to back Remain then you need to contact Jeremy Corbyn and Keir Starmer to get them to change tack. I suggest that you are less unlikely to succeed if you focus on asking them to back a referendum on the terms, since they would not need to place themselves against Brexit.
    http://www.labour.org.uk/page/-/Images/manifesto-2017/Labour%20Manifesto%202017.pdf

  20. It seems clear that no express decision to leave has been made but given constitution law is fluid I wonder whether the following influenced the behind the scenes thinking:
    – by staying silent, is it an attempt to create a precedent that a non binding referendum decision can only be reversed by another?
    – is it an attempt to establish a precedent that the PM or Government can and did take the decision with a view to taking the same position with the Great Repeal Bill in terms of EU law that is incorporated under domestic law?
    – is it an obvious loophole that means they hope someone will bring a legal challenge and give the UK a get out jail free card?
    – is it a chance for the UK to revoke notification at some point (when negotiations are going badly) on the basis no decision was made (recall the decision is a matter for domestic law not EU law)?
    – is it an attempt to goad the EU institutions or another member state into bringing a case before the ECJ whereby the issue of whether a notification is valid under EU law where a decision has been made under domestic law is looked at in the hope it stops the 2 year clock?
    – is it a chance for the PM to blame her lawyers for being a bit shit but saves her political bacon or what is left of it?
    Whatever the answer something was afoot at the time

  21. The Act appears to delegate the decision to the PM. Acts of Parliament delegate all kinds of decisions to Ministers – such as decisions to make regulations. These seem to meet ‘constitutional requirements’. The decisions of the delegatee (Minister) seem legally binding on the delegator (Parliament).
    What’s the difference here? Parliament delegated, the PM acted. She could have chosen not to act. She was given a power, not an duty.

  22. See my comment above – if that was the case , the decision was unlawful under administrative law as the PM failed to exercise her discretion appropriately, incorrectly stating she was bound by an advisory referendum.

  23. Andrew, she wasn’t bound by the ‘advice’ of the referendum in any legal sense. Legally she was free to ignore it – she and everyone else knows it. When she says she was bound by it, she would be meaning in a moral or political sense, never a legal sense.
    She is also entitled to seek whatever advice she likes in forming her decision whether or not to exercise the power. A referendum, Jim down the pub, or the fairies in her head. She decides – Parliament says so. Is it much different to a Minister deciding what regulations to include in the Dog Act (or whatever).
    It is a big stretch to say she fettered the decision after the power was given to her. To have done that, she would have had to stand aside and let someone else do everything after the power was given to her. Given she signed the notice (and no doubt had an active role in its composition), this doesn’t seem to fly.

  24. Hi Mike, thanks for your response. I’m not sure it’s correct to say she was free to ignore the decision. Making an administrative decision is like a simplified version of making an judgment in a court case or arbitration, in which principles of natural justice are to be followed. Accordingly, the referendum provided evidence which she was required to take into account. However, it’s not the only evidence she was required to take into account. Ultimately, she’s required to act in the best interests of the country, and if she indicated that the only criterion she followed was the outcome of the referendum, she essentially misdirected herself.

    My point is that she fettered her own discretion by believing that she had no discretion to say ‘stay’ after the result of the referendum. The statements of the government afterwards support this view. I agree it’s logically inconsistent to suggest that she fettered her own discretion prior to the vote (when she wasn’t even PM).

    Logically, there should be no distinction between saying ‘I will abide by this advisory referendum tomorrow and do whatever the outcome says’ and saying ‘I believe that I have no choice but to follow the outcome of the advisory referendum which took place yesterday’, and I don’t believe there is legally either.

  25. But Andrew, on what basis do you say her statement ‘I believe that I have no choice but to follow the outcome of the advisory referendum which took place yesterday’ is a statement of a legal position rather than a political statement (ie ‘if I ignore this, UKIP will be back with my head on a stake’).

    I don’t think we disagree that the pressure on the PM to follow the referendum result were enormous.

    But unlike a lot of decisions in exercise of a discretion, this was entirely a binary one. She either sends the Art 50 notice or she doesnt. There is no 3rd option that I can think of.

    The question is whether the decision to send it, on balance of the factors, was a wholly unreasonable exercise, contrary to natural justice. The fact you don’t agree with the decision doesnt (from the perspective of administrative law) in itself make it unlawful.

  26. I appreciate that the statement was a political one, but I believe it was dangerous from an administrative law perspective.

    The issue would be resolved (assuming that there had, of course, been a decision), if, somewhere, there was a statement from the PM saying “I have carefully considered all relevant factors, including but not limited to the outcome of the referendum, and on the basis of those factors, I have decided that the UK shall leave the EU and will notify under Art 50. accordingly”.

    However, all the evidence we have (including letters from DExEU) is contrary to this. Remember that it’s a principle of natural justice that justice needs not only to be done, but be seen to be done, so there is a requirement for a degree of transparency. I can understand why a press statement might gloss over the reasoning behind the decision, but it’s a bit reckless if correspondence from DExEU compounds it.

    Unfortunately, my understanding of administrative law is not deep or current enough to know whether there’s any meat likely to be found on these bones. Your reference to ‘wholly unreasonable’ suggests that we’re in the territory of Wednesbury unreasonableness, and I would like to think that wasn’t applicable here, as we’re challenging something more fundamental than an unreasonable decision based on a certain fact matrix, namely a failure to consider certain facts at all.

    Of course, I challenge the decision because I disagree with it, but I’m not saying that no reasonable PM could have come to the decision having considered the appropriate facts/circumstances (in a purely legal sense), but rather that she failed to take all relevant facts/circumstances into account. If she’d tossed a coin, it would clearly be an invalid decision (but I wouldn’t be wasting too much breath arguing about it if it had come down ‘remain’).

    Thanks for your thoughtful response, by the way. There aren’t too many places on line where it’s still possible to have a conversation like this…

  27. MikeL, you say that it was a binary decision – but surely she had the option of deferring the decision, while she sought a better understanding of ‘the will of the people’.

    I’d say the political imperative is overstated, too; much of it lies in politicians’ unwillingness to contemplate proper reform of our internal political processes, rather than pressure from the electorate. There seems to be plenty of evidence that the Leave vote was driven as much by general frustration at how poorly we’re governed, as by any real hostility towards the EU. In my view, a responsible government would have recognised that the vote was primarily an expression of public dissatisfaction with the status quo. (And the specific issue is actually part of a more fundamental question about the relationship between different levels of government generally; the principles which determine how sovereignty should be divided between Westminster and the EU are essentially the same as for the devolved governments, and local government generally.)

    It’s interesting to see a couple of people speculating above about the possibility of us claiming, down the line, that the Article 50 notification was invalid. I wrote to the European Commission last month, pointing out that the requirements of our constitution aren’t as clear as most people assume, and that, unless the decision’s validity is confirmed by the courts, a future UK administration might be able to successfully repudiate it. I’ve no idea if they’ll be open to the idea – or even if my letter will have filtered through to anyone in a position to act on it – but I think an EU referral to the courts could catalyse a proper constitutional debate in this country.

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