When was (or will be) the Article 50(1) decision?

16th March 2017

Today the Bill giving the Prime Minister the legal power to make the Article 50 notification will be given royal assent.  The Bill will become an Act.

(Contrary to popular belief, including some news outlets, the Queen does not give the royal assent in person.  No monarch has done this since 1854.  The elaborate process employed instead is under this 1967 Act.)

The Act will provide:

The Prime Minister may notify, under Article 50(2) of the Treaty on European
Union, the United Kingdom’s intention to withdraw from the EU.

Paragraphs 1 and 2 of Article 50 provide:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

So the notification leaves the (no doubt academic but still interesting logical prior) question: when exactly was the decision under Article 50(1) that the United Kingdom would decide ‘from the [European] Union in accordance with its own constitutional requirements’?

The Miller litigation largely sidestepped this issue, no doubt wisely.

(This no doubt is because a decision to notify is a more solid act (or omission) for a court to decide whether there is ‘vires’ (ie, legal power) or not.)

The Supreme Court’s appeal decision mentions Article 50(1) in passing a few times but does not (it seems to me) determine the question.  But (as far as I can tell) their declaration concerns Article 50(2)

When and where can we locate the Article 50(1) decision?  One needs to be taken, else what is to be notified under the new Act.

It cannot be the referendum, as that was not legally binding.

Can it be a decision under the prerogative?  If so, when was that made and in which form?  Has it yet been made?

Or is it the new Act, giving legal authority to make the Article 50(2) notification? Has parliament made the decision?  If so, is this not rather circular?

Is the giving of the notification itself by the Prime Minister also the prior decision?  Is it one and the same?

I am not suggestion anything serious rides on this question – but as a matter of constitutional law, when precisely was (or will be) the decision by the United Kingdom ‘to withdraw from the [European] Union in accordance with its own constitutional requirements’?


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38 thoughts on “When was (or will be) the Article 50(1) decision?”

  1. The answer is that, in terms of Article 50, there has been no legal decision to withdraw. Of course in reality, it’s simply a decision made by the hard-right of the Tory party.

    1. …Of course in reality, it’s simply a decision made by the hard-right of the Tory party…

      …and over 50% of the electorate…

  2. From my Monday-Morning Quarterback position I will note that including a clause in the A50 Act to the effect of “The passage of this act shall constitute a decision to leave the EU for the purposes of TFEU Article 50(1) and its validity as such may not be questioned by any court” may have been prudent.

    (In fact, I was surprised they didn’t put it in)

  3. Professor Alison Young and I wrote a blogpost about this before the Divisional Court hearing in Miller. We concluded:

    ‘We are left … in the odd situation that the Government is asserting in its skeleton argument that an Article 50(1) decision has been taken without clearly stating when, by whom, or in what way such a decision was taken, with the whole matter framed so as to leave ambiguous whether a decisional act of Government that is independent of the referendum outcome itself has really occurred at all. Against that background, there are strong grounds for arguing that once we reject any suggestion that the referendum outcome itself can be the decision, the overarching argument that the Article 50(1) decision has been made collapses.’

    Our blogpost is here: https://publiclawforeveryone.com/2016/10/09/on-whether-the-article-50-decision-has-already-been-taken/

  4. Perhaps someone may be so kind as to explain how it is that a royal assent is given or the royal prerogative is exercised, but by anyone other than royalty, i.e. the Queen.

    Or is this one of those unexplained traditions peculiar to the British (perhaps soon to be just the English after Brexit?), whereby they have a Constitution that may not be read up by the common people, but is deeply buried in a host of laws and precedents only accessible to the most learned of the legal profession, and even then they need to argue over it.

    Or for that matter a House of Lords, which is totally toothless at the end of the day, in that their decisions may be simply overridden by the House of Commons, where after they simply collapse without a whimper? What is their function and purpose? Surely their views should be taken seriously? Particularly so when one union is being left, which may possibly lead to the demise of what one may think is a more important union. But no, the Prime Minister now has a free hand to strike whatever deal, including no deal, that she may get without necessarily offering Parliament a final say in the outcome.

    Is this all tradition, which is retained for tradition’s sake in the 21st Century? Is it not time for a spade to be called a spade and for the populace to have a codified constitution made available to them?

    Just asking!

    1. Royal Assent can be granted in person, by the Queen herself (although that hasn’t happened for 160 years) or on the Queen’s behalf, by members of the Privy Council appointed as Lords Commissioners for that purpose.

      As I understand it, these days, Royal Assent is typically granted by the Queen signing the appropriate form in Part IV of the Schedule to the Crown Office (Forms and Proclamations Rules) Order 1992. See http://www.legislation.gov.uk/uksi/1992/1730/made

  5. Doesn’t the act (depending on construction of “the UK’s intention” either
    a) legislate that the UK has such an intention and so is the decision (if the intention is construed to be in the past); or
    b) authorise the PM to make such a decision on the UK’s behalf (if future)?

    1. She is given a power, not a duty, to notify. For Parliament to be taken to have made the Art 50(1) decision by passing this bill, a power is not enough; a duty is required, otherwise Parliament’s decision is at risk of not being notified.

  6. According to Art50(2), the withdrawal notification option seems to be available only to a member state which fulfils the requirements of Art50(1), and there are very good reasons for this – you wouldn’t want to oblige the EU to take seriously every withdrawal notification issued by some here-today-gone-tomorrow Europhobic Prime Minister who just happens to find themselves in power for a couple of years.

  7. This *feels* like an important question to me, as a non-expert in the legal aspects. Important enough for my partner & I to have decided to make ourselves permanently resident in France (we have a home there already) as of this weekend. Our one-way ticket was booked on the assumption we may need to ‘beat’ Article 50 notification by establishing evidence of our intent.
    This is on the (so far unevidenced) assumption that reciprocal rights of residence will have to be pegged to *some* arbitrary date or other. ‘Sending A50’ seems to be a likely candidate.
    To feel we have to second guess our own country’s intentions in a personal decision of this magnitude is irksome.

  8. IANAL, but I would contend that it’s the passage of the Act through parliament.

    Even if it’s not explicit in the Act, it’s unthinkable that the passage of the Act through parliament giving the government permission to notify our intention to leave under Article 50(2) could be seen as anything other than formalising the decision to leave.

    The nation’s will was expressed in the referendum, the government’s (and opposition’s) intention to respect the nation’s will was asserted repeatedly both before and after the referendum, but the passage of the Act through parliament is what finally formalised it.

  9. I’m not a public lawyer, just a grasping commercial lawyer, but:
    – Miller established the government didn’t have power to notify without an act of parliament.
    – It must follow that the government also did not have the power to make the decision (if it could have made a decision, why could it not notify anyone?).
    – Has there been a decision so far? For the reasons identified by Mark Elliott among others, the referendum wasn’t it.
    – The first instance it could be said of parliament making the decision (that being the only other entity of relevance here) is the bill that appears to be about to receive royal assent. The point not having been considered by parliament before that.
    – There has therefore not yet been any decision.
    – Then the question must be whether the new act is to be construed as either amounting to the decision or giving the government the power to make the decision.
    – That probably turns on the point identified by Robin above. Does indicating an “intention” pre-suppose that intention, and so decision, now exists. I think it probably does.

    1. …– Has there been a decision so far? For the reasons identified by Mark Elliott among others, the referendum wasn’t it….

      Mark Eliot, and many others, seem confused about what is happening.

      The decision to leave the EU is a POLITICAL decision. It was taken by the referendum. Before that the politics were firmly Remain – after that they were firmly Leave. If you wish to isolate the point precisely, you could say that Cameron’s decision to accept rather than fight the referendum result was the fulcrum point, so we are probably talking about the night of 23-24 June.

      After the political decision is taken there need to be a number of legal moves to enable it. But these are essentially mechanical processes for accepting the situation. The decision to leave was taken during the referendum, by the people.

  10. I suppose the Government’s answer to when a decision was taken will be similar to their answer on parliamentary assent in the Miller case: the decision was made in the referendum, is being carried out by the government, and that parliament does not prevent it from being carried out shows parliamentary assent. Between this “assent by omission” and the (soon to be) Notification Act, the “constitutional requirements” seem plausibly met.

    The Notification Bill confirms this. It merely gives the Government the power to *notify*, and the PM and Ministers constantly refer to the “will of the British people”, i.e. the referendum, as the primary cause of their actions in notifying. While this is no doubt the Government shifting responsibility, it is nonetheless true that had the result of the referendum been different, there would have been no plausible “decision to withdraw” from the EU.

    With the referendum not being legally binding, we pedants can of course maintain that the decision is made by the Government (with some Parliamentary involvement), but the question of identifying when an act was done not being a matter of Law, but a matter of Fact, we can plausibly permit considerations beyond the law in answering it. A cause of action, which an instance of deliberation, is usually the decision to act re the action in question. With regard to leaving the EU, that can only be the referendum.

    It would seem that the Supreme Court (quite rightly, IMO) blocked a kind of emerging convention. This “assent by omission” convention would have given the Government the power to do whatever Parliament doesn’t prevent it from doing. Were the Government to notify without an Act giving it such a power, it would be acting outside the Law. With an Act giving it such power it seems strange to claim that Parliament intended the Government to be able to notify re A50, without thereby assuming that a decision had been reached to notify.

    1. …This “assent by omission” convention would have given the Government the power to do whatever Parliament doesn’t prevent it from doing….

      That is, of course, one of the bases on which Common Law is founded. You are indeed entitled to do anything except that which the law prevents you from doing. Have we really moved that far towards Continental Law, where the assumption is that you can only do that which the law allows?

      1. You are indeed entitled to do anything except that which the law prevents you from doing.

        What works in your personal life doesn’t work in public law. Governments are subject to the rule of law; they can only act where they have a power to do so. *That* is a fundamental proposition of UK public law.

      2. The Common Law maxim that a person may do anything not prohibited doesn’t apply to Government actions that have the effect of changing the law. Those actions need Parliament’s authority, again because of the Common Law, in this case the maxim that only Parliament and those it delegates may change the law. And as the SC held in Miller that triggering art. 50 would have the inevitable effect of changing the law, Parliamentary authority was required.

        So it was a clash of two different Common Law rules, rather than a move to Continental Law.

    2. …it seems strange to claim that Parliament intended the Government to be able to notify re A50, without thereby assuming that a decision had been reached to notify.

      It’s equally, if not more, strange to claim that Parliament has decided to leave the EU via Article 50, when the PM is given merely a power to notify that decision. If Parliament had taken the requisite decision, then it would have imposed a duty on her to notify. As it is, *if* Parliament has taken that decision, it lies in TM’s hands to frustrate that decision by simply not notifying.

  11. Brussels will presumably not want to embark on lengthy and acrimonious divorce negotiations if there’s the slightest possibility that the UK may later “discover” that the decision to withdraw, which is currently merely imputed, was either absent or unconstitutional. For this reason, the EU could justify asking for clarification that the UK has indeed taken a decision which meets the requirements of Art50(1), and that Parliament was not just bounced into agreeing the notification without a proper debate on withdrawal.

    1. Wouldn’t it be wonderful if this clarification were sought? I’m not hopeful. I think it’s pretty clear that no decision has yet been taken. That explains the wooly language of the Intention to Notify Act. As said above, it grants the Prime Minister the power but imposes no duty to notify. And the reversal of the logical ordered steps (a trick used by hypnotists) flows from the fact that the Referendum cannot serve, in and of itself, as a decision. The Act of Referendum was written to provide a snapshot of public sentiment. Politics not law has led to its status as a mandate. I suggest we all listen/look very carefully at exactly what is notified next week. It may be the Prime Minister notifies her intention to notify.

  12. Presumably, in granting the Prime Minister with the authority to make the article 50 notification, there is a direct implication that the occupant of that office will able to make the decision to implement it on behalf of Parliament, and hence on behalf of the state. So I would argue that the decision of the state will be at whatever time after the signing into law of the bill that Theresa May makes the decision to notify the EU, which some might say would be immediately thereafter as the government’s intention to do so has already been announced.

  13. If I remember correctky, this was addressed by Lord Pannick in oral argument before the High Court. Transcripts should tell.

  14. According to the BBC News today, it looks like HM The Queen did give Royal Assent this afternoon Thu 16/03. May must have taken it with her to her weekly audience, and asked her to sign!
    Hamish MacLeod

  15. I think it’s missing the point to ask when the decision was made (or by whom). Like other commentators to this blog I believe the Act asserts the fact that a decision has been made (or, more accurately, it asserts that the UK now has an intention to withdraw) and empowers the PM to notify this state of affairs to the EU. The Act is thereby legal authority for the UK having an intention to withdraw.

    I would draw a parallel with the European Parliamentary Elections Act 2002 (familiar to many from the recent A50 cases) which similarly grants powers and imposes obligations in relation to the election of our 87 MEPs which the EPEA asserts that the UK has. Nobody questions the EPEA on the grounds that the existence of our MEPs does not derive from a specific decision by the UK legislature or executive.

  16. I think it was the referendum. The referendum may not have been “legally binding”, but by that we simply mean that nobody had been given sufficient authority to implement the result of the referendum (by giving the notice) at the time that the referendum was held. I can’t see that the fact that nobody had been given power to implement the decision necessarily means that a decision wasn’t made.

    As you say, nothing since the referendum seems to have constituted such a decision – although what about the Queen’s decision to appoint a PM who would implement Brexit?

  17. It’s clearly not the referendum. That was made clear (albeitly implicitly) by the Supreme Court in Miller. If the decision to withdraw had already been made in accordance with the UK’s constitutional requirements, then notification could have been given on the day after the referendum, which the court made clear was not possible. That leaves the Executive or Parliament. My first reaction was that Parliament has decided implicitly, by authorising the PM to give notification. But on reflection, I agree with the comments here that the decision is actually the PM’s.

    Parliament has given her a power – not a duty – to notify the EU. Therefore she gets to decide whether to notify or not (today’s announcement of the date of notification now clearly shows that she has made a decision to do so). If Parliament had decided definitively to withdraw it would not have left it within the PM’s discretion to not see that decision through (even though politically it has not been in doubt that she would). Equally the text of A50 says that a Member State which decides to withdraw *shall* notify the European Council of its intention. As the PM has the ability to choose whether or not to notify, she must be the one making the final decision.

    1. I don’t agree that it’s clear at all. But the SC majority in Miller is not inconsistent with a decision having been taken in the referendum, but nobody having the power to implement it. (Because the consequences identified by the SC as needing Parly authority flowed from the notification, not the decision.)

  18. David, what are you assuming when you say nothing serious rides on the mis-ordering of steps, such that the power is given to the Prime Minister to express an intention to notify before an express decision has been taken by Parliament? The Act passed last week was not a decision. Nor is next week’s notification of an intention to withdraw a decision.

    1. I have given this a lot of thought. My first reaction was that the Notice served on 29th May was invalid. However….

      Miller established that only Parliament by means of an ACT may make a decision which would remove citizens’ rights. Not the PM, not a Minister, not even “the People”.

      In numerous instances it has been claimed that the referendum was the ‘decision’.

      David Davis, Minister for Exiting the EU, in presenting the Bill told the Commons on 31st January 2017 that the decision was made by the referendum:

      “The Bill responds directly to the Supreme Court judgment of 24 January, and seeks to honour the commitment the Government gave to respect the outcome of the referendum held on 23 June 2016. 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. We asked the people of the UK whether they wanted to leave the European Union, and they decided they did. At the core of this Bill lies a very simple question: do we trust the people or not? The democratic mandate is clear: the electorate voted for a Government to give them a referendum. Parliament voted to hold the referendum, the people voted in that referendum, and we are now honouring the result of that referendum, as we said we would.”

      Lord Bridges of Headley told the Lords the same, and has confirmed in a letter to Lord Lucas that “the decision as to whether the EU should leave the EU has already been made by the referendum”

      Finally, in the letter from Theresa May to President Tusk of 29th March 2017, it states: “On 23 June last year, the people of the United Kingdom voted to leave the European Union. As I have said before, that decision….”. The referendum vote is clearly claimed to be the decision.

      Is it a legitimate claim?

      One must distinguish between a decision and an action. An action which removes citizens’ right can only be by authority of an Act of Parliament (Miller) . A decision alone is null without action. The Brexit Bill proceeded on the basis as claimed that a ‘decision in accordance with constitutional requirements’ had been made in the referendum. It empowered May to serve notification of that decision. Importantly, Miller assumed that such notification was irrevocable, and therefore that the notification was also the ‘action’. If that were the case, then the Notice would indeed be invalid. But it has since become very clear that it is not irrevocable. The EU have indicated that a genuine revocation request would most likely be accepted, and there are no legal obstacles to that. The ‘action’ which would remove citizens’ rights would be, as Philip Allott has pointed out, the signature of a withdrawal agreement. Not the notification.

      I conclude that 1. The referendum, albeit advisory as set up, became embodied into a clear political commitment by the government of the day and can legitimately be claimed to be a ‘decision to withdraw’. 50(2) Notification must follow automatically. However neither the decision not the notification constitute an irrevocable action, and therefore does not require an Act of Parliament.
      2. An Act of Parliament would be required to authorise the signature of a withdrawal agreement.
      3. Absence of an agreement by March 2019 would lead to automatic loss of citizens’ rights. Therefore that would also require an Act of of Parliament – i.e. an Act to permit the Government to NOT sign an agreement.

  19. Article 50 is a strange and backwards-written treaty item.

    Normally, the business of initiating (and leaving) a treaty is quite simple. The government of a country starts negotiations with the government of another country – tentatively, between politicians, at first, and then, as the civil servants of each side are drawn in, more officially. Eventually, a formal agreement is drawn up which both negotiating sides are happy with. A formal ‘signing’ may be done at this time. But essentially, this is still an agreement between two governments/monarchs/dictators or whatever executive authority operates in each country.

    This agreement is then taken to the representatives of the people – the Parliament or Congress, for instance. Here it is voted on. If it passes, it is ‘ratified’ and becomes a functioning agreement. If it fails, the treaty is null and void.

    So the process is, Executives propose and agree, then the full governing bodies ratify.

    Now look at Article 50. Here the full governing body is required to make the initial move to start. Then it moves to the Civil Servants. And then, after 2 years or other such time as the EU determines, it becomes law.

    A sensible process would involve the executive authority of a country deciding that it wanted to leave, negotiating a ‘leave agreement’ and then passing it to the leaving country’s Parliament and the European Parliament for ratification. That way, the Parliaments would know what they were agreeing to.

    As it is, we have the UP Parliament agreeing to ‘start negotiations’ – which may end up with a good or bad deal – and thereafter we will have no choice but to accept what is offered.

    As a Leaver, I am happy that there appears to be no way of backing out of Article 50 once initiated, but this is no way to arrive at a result that both sides will be content with…

  20. …When was (or will be) the Article 50(1) decision?…

    I can’t see any issue.

    1 – A Member State may decide to leave in accordance with it’s constitutional requirements. For the UK, that means Parliament gets to chose, which means the Government in practice _so long as it commands a majority). The Government decided to delegate that decision to a referendum, and got Parliament’s approval for that.

    The referendum provided a decision to Leave. That was the point at which the decision was made – but it still had to be accepted, since the Government had actually wanted a Remain decision. The Government re-organised, then wanted to accept the referendum decision, but were legally constrained to require Parliament to accept it.

    This acceptance has now been performed, and it falls to the duly appointed representative of the UK to formally convey the decision to the EU. If this does not happen, of course, the EU cannot accept it.
    That is why the Article says ‘A member which DECIDES to withdraw shall notify…’ – the decision has to be made, and then the notification has to take place.

    There is absolutely no requirement for the “decision” to be “legally binding” – it is simply a decision. And the referendum was the point at which it was made. A lot of formal legal processes had to follow, the decision had to be accepted as agreed, which is a legal state, and it has to be notified, which is a legal action – but the decision itself was simply passed to the people, who undertook it.

    1. Your argument falls apart at this step:

      The Government decided to delegate that decision to a referendum, and got Parliament’s approval for that.

      because whatever the referendum outcome *was*, it was not, beyond a peradventure, a delegated decision.

  21. …So the notification leaves the (no doubt academic but still interesting logical prior) question: when exactly was the decision under Article 50(1) that the United Kingdom would decide (to withdraw) ‘from the [European] Union in accordance with its own constitutional requirements’?…

    Why is this even a question?

    I seem to see a last-ditch attempt by the Remainers here, to invoke some obscure legal reason for the Article 50 announcement to be ruled invalid? Or perhaps I’m just suspicious?

    1. Public law lawyers like things neat and tidy; show them a provision that gives power to someone to notify a decision, and they look for who is empowered to take the decision that is to be notified.

      In this case, the power belongs (per the Miller case) to Parliament; yet the Act doesn’t take the decision or confer power on someone to do so.

      TM seems to want to maintain the fiction that the decision to trigger Article 50 has already been taken; and she has chosen to take the potentially legally risky course of maintaining that fiction even in the empowering Act. This is an issue that many of us raised when we first saw the Bill. Presumably she has political reasons (or monomania) for what she is doing, but it would not be a tragedy if it blew up in her face.

  22. So does this leave a loophole to challenge the constitutionality of the A50 Act, on the grounds that it allows notification of a decision that has *not* been taken at all (and therefore not been taken in line with the constitutional requirements)?

    And if the challenge is upheld, would that lead to the A50(2) notice’s effect vis-a-vis the EU being voided, i.e. Brexit halted immediately, or at least suspended? Or would the EU have to continue on the presumption that the notice was constitutional because it solely is up to the UK to judge its own constitutional requirements?

    I believe the question is still timely …

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