Friday, 16 June 2017

The (elusive) decision to leave the EU

Has the UK made a legally valid decision to leave the EU?

Article 50:

Article 50(1) of the Treaty on European Union states that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."  Article 50(2) commences - "A Member State which decides to withdraw shall notify the European Council of its intention ..."


The EU Referendum was held on 23rd June 2017.  Parliament  resulted in a majority of the British people voting 51.9% to 48.1% to leave the EU - see BBC News 24th June and also HERE for further analysis of the referendum.  
The European Union Referendum Act 2015 provided for the referendum to be held no later than 31st December 2017.  The Act did not impose on Ministers a legal duty to implement the referendum result but it was accepted politically.

Post referendum litigation:

A view was strongly held by the government and by many lawyers that prerogative powers relating to treaty making (and unmaking) could be used to give the Article 50(2) notice to the EU without the need for specific parliamentary authority.  This resulted in the legal challenge mounted by Mrs Gina Miller and Mr Deir Dos Santos.  Their argument was essentially that membership of the EU had given the citizen specific rights and those could only be removed by parliament and not by the executive using prerogative powers.  This argument was founded on well-established law that the Royal Prerogative, whilst it embraces the making and unmaking of treaties, does not extend to altering the law or conferring rights on individuals or depriving individuals of rights which they enjoy in law without the intervention of Parliament – see the speech by Lord Oliver in J H Rayner (Mincing Lane) Ltd v Department of Trade [1990] 2 AC 418 – (sometimes referred to as the Tin Council case).

The outcome was that, in R (Miller and another) v Secretary of State for Exiting the EU [2017] UKSC 5, the Supreme Court decided by a majority of 8 to 3 that legislation was required to authorise the government to give notification to the EU of the intention to withdraw.  

The Supreme Court's reasoning in Miller has been the subject of trenchant criticism - notably by Professor Mark Elliott of Cambridge University - The Supreme Court's judgment in Miller: In Search of Constitutional Principle.

The Notification of Withdrawal Act:

Parliament duly enacted the European Union (Notification of Withdrawal) Act 2017 which, by section 1, gave the Prime Minister a power (but not a duty) to notify the EU.  On 29th March, the Prime Minister gave notice by letter to the President of the European Council and thereby commenced the 2 year period referred to in Article 50 - Post of 29th March.

What of the decision to leave?

The Notification of Withdrawal Act does not state explicitly that a decision to leave the EU has been taken.  The Act, on its face, deals only with notification.  This has led to discussion as to whether a decision to leave the EU has been taken in accordance with the UK’s constitutional requirements.

In Counsel Magazine, barrister David Wolchover argues that there is no legal basis for the 29th March notice to the EU - Article 50: The trigger that never was?    Wolchover argues that the UK has not made a decision in accordance with UK constitutional requirements and it follows from this that the 29th March Notification is invalid.

In the UK's constitutional arrangements, sovereignty rests with the Queen in Parliament.  This leads to a view that it was for this sovereign  body to legislate to make it clear that a decision had been made.  As I have indicated in previous posts - 27th June 2016 ; 17th March 2017 and 16th May 2017 - I would have preferred this approach to have been taken.  There is certainly no EXPLICIT statement in legislation that a decision to leave has been taken but it may be arguable that the Notification of Withdrawal Act IMPLIES that such a decision has been taken by Parliament.

An alternative view is that the UK's constitutional arrangements are such that the decision to leave the EU can be gleaned from facts such as the referendum (will of the people), the subsequent debates in Parliament (accepting the referendum) and, following the Miller litigation, the enactment of the Notification of Withdrawal Act.

Writing on 26th January, Jolyon Maugham QC wondered whether the government's Brexit Bill was sufficient - Does the government's Brexit Bill work?  On 14th June, Maugham wrote a further article - On whether and why the Article 50 Bill is flawed - in which he wonders whether it was a deliberate political choice to source the decision "in the will of the people."  He said: "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."

Status of the Notification from an EU viewpoint?

Article 50 is part of the law of the European Union.  Article 50(1) requires a decision to leave to be made in accordance with the UK’s constitutional requirements.  A decision has then to be notified to the EU – Article 50(2).  Does this mean that if a decision is not made in accordance with constitutional requirements then the subsequent notification is automatically invalid?

Professor Kenneth Armstrong (Professor of European Law, Cambridge) has argued that "it would not be for the European Court of Justice to make a determination of whether a decision had been made in accordance with domestic constitutional requirements. Rightly it would consider that to be a matter of the interpretation of domestic law."  See his article at UK Constitutional Law Association - Has article 50 really been triggered?  

Professor Armstrong wrote that if it turns out that there is a legal defect capable of being challenged before a UK court which could suggest that a lawful decision is not in existence then self-evidently that would have domestic political and legal repercussions.  But it would have no automatic legal consequences for the processes at EU level which are underway due to the Article 50(2) notification.

At the time of writing, nothing concerning Brexit is before the CJEU but it is not beyond the bounds of possibility that the court may be called upon to resolve legal issues as the Brexit process proceeds.  See the report of an interview with the CJEU President - Koen Lenaerts - at Financial Times – FT (£)

We can be fairly sure that this debate will continue particularly as the Remain side continues to seek straws to clutch at in their desire to stop the Brexit process.  As things stand, the new UK Parliament is highly unlikely to seek to stop Brexit given that the two largest Parties (Conservative and Labour) are both pro-Brexit albeit with some differences of detail and approach between them.

The State Opening of Parliament will be on Wednesday 21st June.

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