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.





How to choose the next Prime Minister – and influence Brexit

The candidates are lining up in the race to succeed Theresa May as next leader of the Conservative Party and – barring yet another General Election – Prime Minister.

They range, as can be seen, from the fantastically toxic Michael Gove to the public’s choice, Ruth Davidson. The race looks certain de facto to be a third – in the space of little over a year – referendum on the nature of our future relationship with the EU.

The procedure whereby the leader is chosen is set out in Schedule 2 of the Conservative Party Rulebook.

Broadly, if there is more than one candidate – and after the disaster of Theresa May’s premiership it is hard to imagine another act of anointment – MPs narrow that number down to two candidates and members then make the final decision.

Which members get to make the final decision? Well, Schedule 2 Rule 5 (see above) sets out two criteria. You have to be a member at the time of the “call for nominations” (and at the time of writing there has been none) and you have to have been a member for three months at the close of the ballot (presumably of Party Members) for the leadership.

So, unless the contest is over within three months (and remember: it has yet to even start) new members joining now will have a right to vote.

Joining costs £25 – or a mere £5 if you are under 23. This compares with the last Labour leadership election where becoming a “Registered Supporter” cost £25 whatever your age.

Most importantly of all, you will have a high degree of influence. The Conservative Party membership is low. This recent estimate from Professor Tim Bale (published by the House of Commons Library) gives a figure of between 130,000 and 150,000.

And, of course, turnout will be less than 100%. In the 2016 Labour Leadership election it was 78% but that may, given the febrile atmosphere, have been artificially high. In 2010 it was 72%. 72% of the middle figure of 140,000 is 101,000 so the winning candidate would need only 51,000 (rounding to the nearest thousand) votes. It is perfectly possible that just a few thousand could tip the balance.

Are there any catches?

Well, Rule 17.7 gives the Board of the Party an absolute discretion to cancel or refuse your membership. But nothing ventured nothing gained, you may think. And on a refusal – and I think likely a cancellation – you would get your money back.

Membership is open to those who share the Conservative Party’s objects and values (see Clause 3 of the Rules). But they are (so far as I can see) nowhere stated.

You would – at least if the Labour Party found out (often they don’t) – lose any membership of the Labour Party (see Chapter 2 Clause 1.4.B).

And you have to agree to the Terms and Conditions of membership of the Conservative Party.

But they are relatively modest.

If you want to choose the next Prime Minister – albeit from a shortlist – and influence Brexit… perhaps you should join the Conservative Party.

Sometimes you try and you do not succeed

Along with the other Plaintiffs, Jonathan Bartley, Keith Taylor and Steven Agnew, I have taken stock of progress made on the Dublin case, its prospects going forward and changes in the wider political setting. With regret, we have agreed between us and with Ireland that the litigation should be discontinued. I set out my own reasons for consenting to that course below.

Last week, the parties concluded the exchange of pleadings – the written cases setting out the points each side intends to take. That made it an appropriate moment to reflect with the Counsel team on the way forward. 

A number of matters have become apparent. In particular, it is clear that Ireland does not want a reference to the Court of Justice in Luxembourg of the questions in the proceedings. This stance surprised me. I believed that the Ireland would want to act mindful of the law rather than in the dark. But, surprising or not, it has consequences.

The first is timing. 

If, as is likely, Ireland takes every point available to it, it is unlikely we would have a full hearing in the High Court until the autumn. The advice we have received only this week from the senior member of our Counsel team is that we would be very unlikely to obtain a reference to the Court of Justice from the High Court. We would then need to appeal to the Supreme Court of Ireland. The Supreme Court would be more likely to make a reference – but our prospects would still be speculative.

If you assume that a reference were to be made at that stage, the UK Advocate General has indicated it would take four to eight months to hear that reference. So we might not have a decision on the questions referred much in advance of the date (October 2018) by which both David Davis and Michel Barnier have said negotiations would need to be concluded. 

The second is costs.

Funding the litigation going forward will be expensive. Our costs will not be insignificant. And provision must also be made for the other side’s costs in case our claim fails. The advice we had at the outset was that we should be able to get an order protecting us from the other sides’ costs. However, the advice we now have is more pessimistic about that prospect. This means that we would have to raise money to pay our own legal team – and to pay the Counsel engaged by Ireland.  It is possible that such a sum of money – which would be in the hundreds of thousands of pounds – might be raised. But, even assuming it can, it leaves the question whether, given what we now understand about timing and prospects, raising and spending that money is wise. I do not want to seek to raise such a substantial sum of money unless I can be satisfied that to spend it for the stated object is prudent. And I regret that I am not.

What does our decision to discontinue the litigation mean? 

It does not mean Brexit is inevitable.

Each of the Council, Commission and European Parliament has said the United Kingdom could withdraw the Article 50 notice with agreement. There is no doubt this is so. Discontinuing leaves open the possibility that the United Kingdom could withdraw the Article 50 notice unilaterally. This may be possible – legal opinions on the question differ – but discontinuing means we cannot know by this route whether it can. 

I have sought to be a careful steward of the crowdfunded money. Of the £70,000 raised, £4,000 went in fees. Of the remainder, a significant portion will have been expended on legal costs so far. But there will be a sum remaining unspent. The solicitors have not yet been able to quantify that sum. When that sum is known to me, I will ensure it goes either to other Brexit related litigation with sympathetic aims – or if there is no other such litigation to a charity.

I think it was right to make the bold decision to seek the answers we need. We knew there was no guarantee of success. But we were right to try.  It’s now up to all of us to take our love of our country and our optimism that there is a positive way forward and channel it to protect, Brexit or no Brexit, the values we care about.

Jolyon Maugham QC

The social care u-turn. What it really means.

About half of people die with an estate worth £100,000 or less. The poorer half. You’d think you could fairly describe as progressive a policy that relieved them – but not the richer half – from all burden of paying for their social care.

In weighing up the attractiveness of the policy you’d add a few other elements to the scales. The changing demographics of our population – more and more will need social care and someone will have to pay: so who? The fact that older people are richer: of the different types of household by wealth mapped by the ONS the second wealthiest was couples both of whom were over 65 with no children. The wealthiest? Couples one of whom was over 65 with no children. The fact the burden would ultimately be born not by people who had worked for that money but by their inheritors who had not. The policy would level out inter-generational inequities.

No, the policy wasn’t perfect. Yes, there will be market failures in products that release equity. Yes, it is odd that the some risks are wholly born by the State and other similar risks it shares with individuals. But no policy is perfect. And, for me at least, these criticisms are relatively minor.

So what does the u-turn – recognising that as yet there’s very little detail over its shape – really signal about our next Government?

That’s what interests me.

The rhetoric of the Conservative Manifesto is, with exceptions, Milibandist. It proceeds from a premise I share – that the present shape of capitalism does not suit society at large or even (over time) capitalism.

Of course, its exceptions are quite something. Its stance on immigration is economically insensible and culturally anathema to me. And to place at the forefront of your campaign a policy you know you will not deliver is hugely damaging to our democracy. The Manifesto stance on Brexit is, of course, a major problem for those who believe that the economic and cultural life of the nation is better served by our continued membership of the EU. And its absence of detail – striking compared with its 2015 predecessor – is consistent with Theresa May’s inclination to coalesce power around her personally rather than to share it with others. As someone who believes strongly in good governance this makes me deeply uncomfortable.

But then (at least if you believe the rhetoric of the Manifesto) the shape of Brexit under Theresa May may not differ so profoundly from that under Jeremy Corbyn. And perhaps we live in a time where only those with autocratic tendencies can get stuff done?

And here we get to the core of the issue.

Can you trust the rhetoric? How do you, as Andrew Rawnsley yesterday asked, respond to a political party that asks the country to trust it with the future by disowning its own past?

And this, for me, is the importance of the u-turn on social care.

Here was a policy that began to address some of the issues around inter-generational fairness, that was progressive, that placed the burden of funding social care on those who would inherit money rather than (as with Labour’s offer) those who strive (in highly paid jobs) and earn.

And yet, faced with pressure from Tebbit and Redwood’s Bow Group, and aided by McDonnell’s unattractive opportunism, Theresa May crumbled. And what, ultimately, the u-turn signals is this.

She may have diagnosed the disease. But she lacks the strength to deliver the medicine to cure it.

Will we negotiate in parallel or in sequence? Does it even matter?

June to October we spent wondering whether we would leave the single market. October to January we knew Brexit meant Brexit but not what Brexit meant. January to March we occupied ourselves preparing sectoral deals we knew could never happen. March we triggered Article 50, and were supposed at last to start negotiating, but Theresa May called the General Election instead.

And now, when we’re back in June again, and the General Election is done, we will have yet another delay.

The summer, David Davis has said, will be taken up not with negotiations but with negotiations over the order in which we negotiate. Article 50 mandates, he says, negotiations of the future relationship between the UK and EU at the same time as negotiations about our exit agreement. This would smooth his political path to a trade deal. But the EU disagrees. It says we must first resolve the question of our exit bill and the rights of EU citizens.

And, perhaps because David Davis has said it, we’re now all obsessing about it. The media is in a flap about it. I’ve been asked whether the point might be litigated. But does it have any value?

Reader, it does not.

Here’s what Article 50(2) (relevantly) says:

the Union shall negotiate and conclude an agreement with that [withdrawing] State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

And here’s why the point lacks value.

(1) On any view the future relationship takes a backseat to the withdrawal agreement. The Treaty mandates that the withdrawal “agreement” be negotiated. By contrast there is no Treaty requirement for an agreement governing the future relationship.  All the Treaty seems to envisage is that there be a “framework” – something less than an agreement – for a future relationship.

(2) The requirement to take account of the framework is parasitic on the agreement. If there is no agreement then there is no need to take account of the framework. What this seems to me to mean is this: unless and until you have a degree of confidence that there will be an agreement it is pointless to take account of anything in that agreement. And this thinking is perfectly reflected in the EU’s negotiation position. They want a degree of confidence that the stumbling blocks to an agreement – citizens’ rights and settling the tab – will fall away before they move on to discuss the rest of the agreement or the framework.

Those points are points of construction. And they are tolerably clear. But there are also powerful arguments to why, even if the position were less clear, Davis’ argument would still be futile.

(3) Judges only do what judges can do better than those they oversee. One of the things they can do better is read the words of the legislation. But they are not negotiators and will not tell those who are how negotiations should be conducted. This isn’t a philosophical point. It is a principle of law – called justiciability. But what it means is that judges aren’t going to tell the politicians how to handle the Article 50 discussions.

(4) But even if all of this is wrong, and Davis is right, where does it get him? Will he take up six months or more asking the Court of Justice to rule on the order in which the negotiations have to be conducted? Leave aside the irony of Davis seeking to persuade the CJEU that We’ll then be in March 2018 and we still won’t actually have begun to negotiate about either the withdrawal agreement or the framework for our future relationship.

None of this is rocket science. It’s not difficult. So the interesting question is not whether Davis is right. It’s why on earth Davis would be taking up time arguing a point he can’t win?

Why a further delay? Taking us well beyond a year after the vote to leave without even commencing negotiations?

And here we move into the realm of speculation. And we can’t know what the answer is. We can’t know whether it’s because they don’t want to get found out. We can’t know whether they are trying to delay the economic reckoning. Or whether they see time as their ally in embedding a sense of the inevitability of Brexit.

But what we can know is this. This isn’t how you behave if you’re trying to strike an enormously complex deal in a very limited time frame.


Brexit and the Sanguinistas

Their approaches take many forms, the Sanguinistas.

“By resisting Brexit you lose the ability to influence its shape.” “Theresa May needs a bigger majority so she can face down her rebels.” “Brexit is a done deal. Make the best of it.”

And I ask: how will I influence its shape by accepting it? What evidence do you have to support that notion? How do I make the best of it?

And they remain silent.

The Conservatives had nine months between the referendum result and triggering Article 50. Did they use those nine months to engage the country in a discussion about the form our departure from the EU should take? They did not. Did they recognise that on the Leave side there were a dozen contradictory positions – to save the NHS, to cut immigration, to select immigrants, to kick the establishment in the teeth, for the principle of more autonomous law making, out of fear of a rush of Turkish immigrants, and many more? They did not. Did they seek national unity in advance of national strife? They did not. Did they want engagement? They did not.

Did they march public expectation to the top of the hill and leave it to others to march down again? Did they use the press to belittle our judiciary? To tar as unpatriotic, or worse, those who sounded notes of caution? Or who sought to establish that the control to be taken back should rest in the hands of Parliament not an unelected Prime Minister acting in the teeth of her Manifesto? Did they rattle their sabers at our European neighbours? Did they threaten to withhold security co-operation, whilst risking our own? Did they cosy up to Trump and Erdogan and Saudi Arabia and the Philippines as they threatened and belittled France and Germany and Italy and Spain? Did they offer to turn the United Kingdom into a tax haven on the doors of Europe? And hold an enormous carbon-emitting bonfire of the regulations that seek to salvage a home for our children?

They did.

And now? Now that the Government has turned the rhetoric dial up to eleven? Now that the Prime Minister has accused the EU of interfering in domestic politics and willing us to fail? Now that she makes the clear choice to put parochial interests before those of the nation? Now, as the gap yawns? Between the imagined reality of a clique of tax dodgers, climate change deniers, profiteers, and fascists and the politics and Government they fund? And the actual reality in the actual world.  As that chasm gapes and widens? Now that a chaotic Brexit that stands to leave hundreds of thousands of Britons living in Europe without healthcare or residency rights? And the same for millions of Europeans here – our colleagues, our neighbours, our friends, our husbands, our lovers? And cause enormous chaos and unrest in relations with our closest and dominant trading partner? With huge consequential disruption for lives and livelihoods? Now that Brexit hoves into view?

Should we work with them now?

Answer for yourself.

But I ask you this, you Sanguinistas. Those who make a living from cutting their political cloth to suit the day’s prevailing fashion. Whatever the price. What would cause you to say, “I have changed my mind. Although I hope for success, the risks of Brexit outweigh the prospects of delivering it? These are not people who I can influence, or influence for the better? The interests of my country are not served by this cause?”

What would it take for you to recant? What evidence would persuade you? Is there any?

Can we unilaterally revoke Article 50? An answer to concerns.

Now that a notification under Article 50 has been served the focus has moved to whether that notification might be revoked. It’s clear it can be revoked with the unanimous agreement of the remaining 27 member states. The real question concerns unilateral revocability: could the UK remain in the EU just because it changes its mind?

This is ultimately a question of law – a question the so-called Dublin case seeks a reference on. More news on that tomorrow for members of the Good Law Project and those who helped fund the case.

What I want to touch on here is a narrow point but one that is a matter of interest to a number of national governments – Italy, the Netherlands, Germany and elsewhere.

And the point is this, if the UK could unilaterally revoke, would that hand power to the UK in negotiations? And, in particular, would it enable the UK to extend the two year time limit in Article 50(3)?


If you read Article 50(3) in isolation you can immediately see the concern. How, those Governments might ask, could this two year limit be policed if the departing state could simply revoke at the end of the period and re-notify?

But here’s the thing. The law does not exist as some abstract concept in isolation. It operates in the real world. And if you consider how Article 50 might operate in the real world the concern evaporates.

A decision to notify (or, indeed, a decision to revoke that notification) must be a real decision made in the real world. Indeed, this is also what, it seems to me, Article 50(1) is driving at when it talks of a decision being made in accordance with its “constitutional requirements.”


And whether a decision to leave is a real decision made in accordance with the leaver’s constitutional requirements is a question which is easily answered. You look to the facts. In the UK we had a referendum. And it was clearly understood by both sides that if that referendum delivered a ‘leave’ verdict the UK would leave. That decision to leave is a real decision.

What about a decision to revoke?

Here, again, the concern expressed in Italy, the Netherlands, Germany (and no doubt elsewhere) that a revocation might be used as a ruse to extend the negotiating period does not survive real world scrutiny. A revocation would be a real revocation if it was taken in accordance with our constitutional requirements. If the United Kingdom decided that it wanted to revoke – most likely (as I have argued elsewhere) through the mechanic of a referendum on the Final Deal or on whether to Leave with no deal – then it would be plain to the remaining 27 member states that it was a real decision to revoke. And not a pretence to extend the United Kingdom’s negotiating period.

Those member states committed to the success of the European Union will, quite properly, be concerned to preserve the integrity of the Union going forward. The project is too important to be put at risk of gaming by parochial interests.

However, equally, there is no need for those member states – which will not want to see the EU weakened by the United Kingdom’s departure – to erect an unhelpful and on analysis unnecessary barrier to the genuinely expressed and real desire of the people of the United Kingdom to Remain.