Thursday, 26 January 2017

Brexit ~ Decision, Notice and the Withdrawal Bill

York Minister - Great West Window
In a post of 27th June 2016 - (It is Brexit (3) - the role of Parliament) - I argued that an Act of Parliament was required so that it was clear that the UK had made a decision to leave the EU.  The gist of the argument was that Article 50 TEU made a clear distinction between the decision to leave - Article 50(1) - and the notification of intention - Article 50(2).  It was necessary to be clear that a decision had been made in accordance with UK constitutional requirements.  The words in red are vital.  The referendum result could not amount to a decision taken in accordance with constitutional requirements because the referendum was not legally binding on anyone to do anything.  Parliament could have legislated to make it legally binding but had not done so.  It followed from this that an Act of Parliament was necessary to achieve a decision made in accordance with constitutional requirements.  The secondary matter of notice to the EU could follow once the Act was in place.  That was back in June 2016.

In October 2016,
a post by Piet Eeckhout (Professor of EU Law at UCL) argued along similar lines - The UK decision to withdraw from the EU: Parliament or Government?  Professor Eeckhout's post linked to a similar post of 9th October by Professor Mark Elliott (Cambridge) and Professor Alice Young (Oxford) - On whether the Article 50 decision has already been made.

In both the High Court and the Supreme Court, the Brexit litigation concentrated on whether the government (the executive) had the power, under the prerogative relating to foreign affairs, to give the Article 50 notice rather than on whether a legally binding decision had actually been made.   The High Court said that nothing really turned on the distinction between decision and notice because it was clear that the two provisions had to be read together and if the Crown did not have power to give a notice under Art 50(2) then it would appear that it could not make a decision to withdraw under Art 50(1).   The court agreed with Lord Pannick QC that whatever the position in relation to any decision under Article 50(1), a decision to give notice under Article 50(2) was the appropriate target for the legal challenge because it is the giving of notice which triggers the effects under Article 50(2) and (3) leading to the exit of a Member State from the European Union and from the relevant Treaties.

Hence, despite the clarity of wording in Article 50, the prior question of Decision was pushed behind the secondary question of Notice.

In the government's appeal to the Supreme Court, the focus was again on whether there was power to give notice.  In the event, the Supreme Court majority (8 to 3) held that an Act of Parliament was required to authorise the giving of notice.  

Following the Supreme Court judgment:

On the afternoon of Tuesday 24th January, the Secretary of State for Exiting the EU informed the House of Commons that a Bill would be presented.  Due to political pressure (see here), the Prime Minister also conceded that there would be a White Paper.

IF any concern remains about whether there has been a legally binding decision to leave the EU, the Bill will probably address it.  Once the Bill becomes law it should be possible to say, by implication at least, that a decision to leave the EU has been taken in accordance with constitutional requirements - that is, by "the Queen in Parliament." 

If the Supreme Court had held that the government did have prerogative power to give notice then it may have been the case that notice would have been given to the EU of a decision which had NOT been taken in accordance with constitutional requirements.  That may have had considerable consequences in the future.

What of further referendums:

The Supreme Court majority was of the view that the referendum was not legally binding but it was (obviously) of great political significance - see paragraphs 124 and 125 of the judgment.  In the event that any future referendums take place, Parliament would do well to ensure that the relevant legislation addresses the consequences in law of the vote.

Revocable notice?  Conditional notice?

The Brexit litigation (including the appeal) proceeded on the basis of an agreed position that Article 50 notification could not be unilaterally revoked by the UK.  It was also common ground that a notice could not be conditional.  Those questions remain unresolved.  The possible consequences of this are well covered by a post by Rosie Slowe on the UK Human Rights Blog - Why the question of revocability still matters

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