Does the “Article 50 Challenge” have any merit?

9th April 2018

Does the “Article 50 Challenge” have any merit?

Some Remainers are hopeful.  The hope – a high hope – is that this legal challenge could stop or substantially delay Brexit.

The website for the campaign for this case is here and the campaign’s Twitter account is here.  Do click and have a look, as in the heated debates on Brexit it is important that things are not misrepresented.

You will see from the campaign’s website that there is a hearing on 12th June 2018, which will be nearly two years after the referendum result and fifteen months since the Article 50 notification was given to the European Union.

The hearing is a renewed application for permission to bring the claim.  This means that the claim still has not got off the ground.  The first attempt – “on the papers” – did not obtain the court’s permission to bring this sort of “judicial review” claim.  Any claim where permission is refused on the papers can be renewed at a oral hearing.  That is what is happening in June.

This means that any substantive hearing on the actual merits is still some way off, if permission is granted.  Such a hearing may be in June, or it may be some time after.  And all this is while the clock is ticking, with the UK to leave the EU by automatic operation of law on 29th March 2019 next year, unless something exceptional happens.

I have not seen the claim form or any of the court papers.  So I do not know for certain how the claimants are dealing with the timing issues, or with the procedural point that such claims should normally be brought within three months of the decision (or lack of decision) that the claimant wants the court to review.  It seems to me that, regardless of the substantive merits of this challenge, time is against the claim.

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But what if time was not an issue?  Would it otherwise be a good claim?

Again I have not seen the court papers.  There may be some ingenious and compelling (and it would have to be both) legal arguments made in the claim which mean that the court would grant a remedy, and somehow stop or delay Brexit.

All this post can do is look at the claim from first principles and to see if the basic proposition is sound, or not.

Has the UK not actually decided, in accordance with its constitutional requirements, to leave the EU?

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The starting point is not any UK constitutional text.

(Please note that, contrary to conventional wisdom, the UK does have a constitution, and most of it is written down – in statutes, cases, and books of authority.  The UK does not have a codified constitution.)

The starting point is Article 50 of the Treaty on European Union.  You can read it here.

The key provision is Article 50(1):

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

The argument is that the UK has not decided to withdraw from the EU “in accordance with its own constitutional requirements”.

That is to say that at no stage in the legal and political process was there a distinct decision.  The referendum was advisory; the statute providing for the notification did not compel the prime minister to exercise it; and the notification was only in respect of an intention for the UK to leave.

At no point, the argument goes, was there a decision: just a lack of decision which was nodded through.

I hope this does not misrepresent the argument (and if it does, I may amend what now follows, as there is no point arguing against a contention which is not being advanced).

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In favour of the claim, one has to concede that there was no point where anyone said expressly: “this is the decision for the purposes of Article 50(1)”.  No doubt this was considered by government lawyers but either they advised against it or their advice was not followed.

And no doubt, those studying constitutional and administrative law will be invited in essays to locate the decision for the purposes of Article 50(1).  On any view, it will long be a fascinating question for the academic lawyer.

But my view is that the claim rests on a misunderstanding of Article 50(1).  And it is also my view that there has been a decision in accordance with the UK’s constitutional requirements.

(These are only my views, and may well be wrong; and the correct legal position on this will anyway be what a court says it is, not what I think it is.  That is how law works.)

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Article 50(1) provides that the decision has to be made in accordance with a member state’s own constitutional requirements.

This means that the EU’s courts will now treat it as a question of UK law.  It will not be for the EU, or any of its institutions, to gainsay what is a constitutional requirement.  That will be a matter of domestic law.

So what is, in respect of the UK, a “constitutional requirement”?

What is certain is that there is no formal and express list of constitutional requirements.  There is not a “Constitutional Requirements Act” or similar legal instrument with a process to be followed.

Constitutional requirements is a vague term, and this is part of the reason why I think the Article 50 challenge is a weak case.  Article 50(1) is not precise enough.  Many things could fit the bill.

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But even if Article 50(1) was sufficiently precise, my view is that there has been a decision in accordance with the UK’s constitutional requirements.

First, there was a referendum.  This referendum was under a special statute, the European Union Referendum Act 2015, which was dedicated to asking the voters a specific (and carefully worded) question.

Or course, the referendum was advisory and not mandatory.  (No doubt people are scrolling down to leave a comment to that effect already.)  For what it is worth, I was one of the first to point out in the mainstream media – before the referendum took place – that the referendum was not legally binding.

But what it did mean is that Parliament (in a parliamentary system) had expressly legislated to refer the question to the electors.  Both Parliament and the electors had been engaged.

And the electors voted, in this dedicated referendum under special primary legislation, by a majority that they wanted the UK to leave.  This in turn created a political (if not a legal) mandate.

Second, there was litigation, contested by the government, which went all the way to the Supreme Court on how the notification should be made – whether further parliamentary approval was required or not.

And a majority of the Supreme Court held that legislation was needed. (A minority held that not even legislation was needed.)

In paragraph 122 of the judgment, the majority said:

“122. What form such legislation should take is entirely a matter for Parliament. But, in the light of a point made in oral argument, it is right to add that the fact that Parliament may decide to content itself with a very brief statute is nothing to the point. There is no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity. A notice under article 50(2) could no doubt be very short indeed, but that would not undermine its momentous significance. The essential point is that, if, as we consider, what would otherwise be a prerogative act would result in a change in domestic law, the act can only lawfully be carried out with the sanction of primary legislation enacted by the Queen in Parliament.”

Note that the Supreme Court here sticks to what is needed under Article 50(2).  The judgment is silent on what the Article 50(1) decision is.  It keeps to the far more concrete question of how the notification is to be given.

Third, there is then another primary statute, which is heavily debated in both Houses of Parliament, which expressly provides that the prime minister can make the Article 50(2) notification.

The short title of the statute is:

“An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.”

One would think that Parliament conferring power on the prime minister to make the Article 50(2) decision means that Parliament accepts that the prior Article 50(1) decision has been made.

The Act has one operative section:

“1. Power to notify withdrawal from the EU
(1)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.
(2)This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.”

Section 1(2) indicates that this Act cannot be repealed implicitly or by accident, that the courts should treat it as a constitutional statute.

The prime minister then makes the notification on 29th March 2017.

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So what do we have?

What we have is a process where the voters have been asked a specific question under dedicated primary legislation, where the Supreme Court has held that a second dedicated statute is required for the notification to be made, where Parliament has passed a dedicated statute in accordance with the Supreme Court’s judgment to confer a power on the executive, and that the executive exercised that power.

Parliament, Voters, Supreme Court, Parliament again, Prime Minister.

Each of these have been engaged.

The Supreme Court checked the government.  The government required parliamentary approval.

The “decision” under Article 50 is difficult to locate but each major element of the UK constitution (other than the devolved powers, which the Supreme Court unanimously held did not have any formal role in this decision) has been involved.

Given the vague scope of Article 50(1), there can be no serious doubt that two key constitutional requirements of the UK – that the executive is answerable to parliament and the courts, and that primary legislation is required for constitutional decisions – have been met.

There is no one neat action which explicitly ticks the box “constitutional requirement”.

But for a specific question to be referred to the electorate by primary and dedicated  legislation, which is then answered, and for the courts to insist that a further primary and dedicated legislation be passed before that answer is notified, looks like a decision to me, and one taken collectively by voters, Parliament, the Courts and the executive.

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But even if I am wrong (which I may well be) and the Courts now hold that there was not a decision under Article 50(1) then where does that get us?

Not very far: for the problem could be quickly cured by primary legislation rushed through a Parliament where the majority were elected in 2017 on manifesto promises to implement the referendum decision.  And even if that legislation could not be made retrospective, it would only delay Brexit not extinguish it.

So even if the claim somehow succeeds, the victory would be brief.

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The Courts have already held what was required for the Article 50(2) notifictaion to be made, and this has been complied with.

There may be ways to stop Brexit.  But those ways are now political, and not by litigation.  And that is how it should be.

 

UPDATE – 9th April 2018, 9.08am

The Article 50 challenge campaign has responded.

UPDATE – 11th April 2018

The A50 Challenge campaign has set out its full response here.

Kudos to them for this polite and constructive response.

Brexit need not be all about yelling at each other.

Look at both, and make your own mind up.

 

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67 thoughts on “Does the “Article 50 Challenge” have any merit?”

  1. I think Brexit can only be stopped if there is a clear and obvious change of mood in the country – the point Dominic Grieve has made.
    I’m not sure how you measure that.
    And I’m not sure there has been a change of mind.
    I fear this has to happen to demonstrate what a colossal mistake and catastrophe it will be. As AJP Taylor said of the First World War – the railway timetables had all been scheduled so it couldn’t be stopped.
    And this does feel a bit like June-August 1914 (from reading history, not experience!). A truly terrible thing is about to happen to this country. Our leaders know it. All the sane and sensible people know it.
    But no-one who can has the guts to stop it. And that’s how history will write this period up, in my view. An unbelievable calamity that could’ve been stopped if there was the political will, the courage. There isn’t. Same as there wasn’t 104 years ago.

    1. Very well put. As the two largest parties appear too afraid to challenge (what is mathematically only) a small majority of voters it falls to ordinary citizens to try to stop the juggernaut. Success is unlikely, but has to be tried through whatever means are available including the courts. I am not 100% convinced by DAG’s arguments (but I am biased – and not a lawyer). My question for the Court would be – under the UK’s constitution, can parliament ‘delegate’ what would normally require primary legislation (the removal of acquired rights), to an administrative decision of the PM (for if a decision was taken, it was taken by Theresa May in her letter to Donald Tusk). Essentially, I think the case comes back to the question of whether rights can be removed without a law being enacted.

    2. Precisely my view. It will take a seismic change in public opinion to derail Brexit, and I don’t see any sign of that. I have always thought that the legal challenges – while interesting academically – would come to nothing. I think DAG’s analysis here is absolutely right. Notwithstanding the specifics of Article 50, generally our constitution is weak against the executive in Parliament, and judicial review – for all its laudable gains – is not a particularly strong mechanism for holding the government to account. As much as I am horrified by Brexit, I think it will take the train going over the cliff to bring about that change in opinion. By which time, of course, it will be too late.

      1. How was public opinion achieved? The referendum was a tool to create that opinion and as such should be regarded suspect.

      2. as a long term data geek (and some reasearch background in this) their has already been a sustained and significant shift in opinion of around eight points with clear trend see http://no2brexit.com/polls.htm
        To that id loke to add three significant caveats. 1 that this has occurred without major part of the media backing this thus far. 2. the difficult part of the negotiations have not even begun and 3. pollsters do have a tendency toward caution in the direction of overcompensating for how they were wrong last time (nate silvee made a very good summary of this ahead of last general election different context i know but i beleive this still applies)
        finally again there are dangers of extrapolating trend but if we assume some continuation we could near 60/40 remain opinion by march 19, which is surely both significant and something mps will be monitoring vis their own situations by the final vote stage.

    3. I read what I consider to be as one person tweeted “a scrupulously fair article” and then I’m faced with being told that I’m neither sane nor sensible.

      Quote:
      “A truly terrible thing is about to happen to this country. Our leaders know it. All the sane and sensible people know it.”

      Interestingly as someone who possess a Master Degree in European Law I consider myself to be reasonably sane and sensible, yet I voted for the UK to leave the EU. I did so because after 40 years of membership I see no movement by the EU towards becoming a democracy, far from it in fact. The EU is far more a dictatorship and shows no signs of shying away from becoming even more so with its rallying cry of ‘more Europe’.

      My hope is that the EU is capable of seeing what Brexit actually means, and in doing so is also capable of change. However, I fear that the EU is nothing more than Animal Farm rewritten.

      1. Your extreme language -“animal farm” was a satire on communism- betrays you. You make no mention of the European Parliament that may reject any deal nor the democratic governments that comprise the Union and shelter behind it for domestic political benefit.
        We must ask ourselves whether we as a country are served by nationalism. Our foreign policy is certainly made simpler by that not being the case on the continent.

        1. I have no time for nationalism in any guise, neither do I have time for anyone that talks of the ‘evils’ of immigration. I also have little time for the thin veil of democracy that the Commission has created to convince the people of Europe that democracy prevails by allowing them to vote for a Parliament.

          I do however agree with Clement Attlee:

          “”The idea of an integrated Europe is historically looking backward, and not forward…by all means, let us get the greatest possible agreement between the various continents, but I am afraid that if we join the Common Market we shall be joining not an outward-looking organisation, but an inward-looking organisation.”

      2. It seems to me highly likely that in the wake of Brexit, the EU will take a look at itself with a view to reform: it would be extremely foolish not to.
        It is a real shame that our pork bothering Prime Minister did not push for that in his negotiations instead of trying to secure special terms for Britain: reforms would benefit the whole union.
        But Cameron is an idiot, we all knew that already.

        1. The EU is always looking at itself with a view to reform and it will continue to do so not ‘in the wake of Brexit’ but because it can and must. Without the UK, it is more likely to find an additional level of economic and fiscal integration in the Eurozone which makes that work better. Do not think of this from a UK perspective – it a distorting one.

    4. You measure it by having a referendum – uncorrupted by Russia’s foreign policy aims to undermine the European Union and the Atlantic alliance. Uncorrupted by the illegal abuse of electoral spending limits and ,leading on from that , the use of companies operating at the edge of the law specialising in the use of black ops to sway electorates – allegedly using illegally obtained personal data.
      That is how.

      1. It won’t be possible to hold the referendum you describe in the time we have. We will remain at the mercy of bad actors for some time I’m afraid.

  2. I think youre probably right about the article 50(1) proposal being weak, however I suspect the good friday agreement makes the invocation of article 50 unlawfaul. I believe the wording of the GFA makes it essential that dublin and london maintain regulatory compliance, making brexit unlawful under international la, as ratified by the UN.
    But that could be bollocks.

    1. UK could leave EU and still maintain regulatory compliance by staying in the Customs Union and Single Market, which is, I think, what the Brexit Subcommittee recently said was the only solution to the GFA conundrum.

      In her letter notifying the EU of UK’s intention to leave, May did say UK does not seek membership in the Single Market, but that is probably not binding, so such membership could be sought.

      1. There is no solution to this with a combination of the Treaties (including the GFA) and Mrs May’s Red Lines. The only sensible thing is to remove the Red Lines (SM, CU and ECJ). This may be BINO but it fulfils any commitment to the referendum result. It is bonkers, of course, but less bonkers than staying within the Red Lines.

  3. The absence of an identifiable decision is unlawful of traditional public law grounds. An administrative act needs to be identifiable.

    The government appear to be saying no decision is required, that would be a breach of A50. Even if the decision may be in accordance with our own constitutional requirements, there needs to be one – that’s obvious from reading 50.1 and 50.2 together.

    Thirdly, any decision needs to explicitly approve the abrogation of rights that is a result of the notice. The ECA cannot be repealed by implication. And the law cannot assume the withdrawal act will be passed. The notice itself is therefore invalid because it is in breach of the legal principle of constitutional statutes.

    1. On the question of whether the executive made an identifiable decision, surely it did when Theresa May decided to use her statutory power and write the letter?

      Isn’t the case about whether that decision was made in a conditionally correct way?

      1. From what I’ve been told, the government are saying that no decision is required.

        As far as I’m concerned the Act should have been written hence:

        S1: The ECA is repealed on exit day (The decision)
        S2: The power to notify is transferred to May.
        S3: The previous two clauses stand regardless of the provisions of the ECA or any other enactment.

        The decision under domestic law is the repeal of the ECA. Without explicit parliamentary approval for that, the notice is a nullity.

      2. Agreed – whether she knows it or not, the PM ‘decided’ to leave when she signed and sent the letter. Until that moment the people had only decided we should, and parliament had only decided the PM could make the decision. The decision though rests (rightly) with the PM.

  4. As always an interesting and well-written piece.

    I am curious about two points: The Grieve amendment to the EU withdrawal vote appeared to require that parliament specifically passes a bill for it to take effect. If parliament choses not to do so, it would have set a constitutional requirement that the UK had not met – could this derail the process?
    Secondly, if the electoral commission concludes that the Leave campaign was in violation of electoral law by over-spending and deliberately trying to subvert the rules on spending using BeLeave (I ask you…) as a vehicle to pay Cambridge Analytica (or its associates) could it vitiate the referendum vote itself? If violation of electoral law holds no consequences on the plebicite itself, it is a toothless piece of legislation. Again, if there is evidence to show electoral misdeeds (and potentially Russian and/or other foreign interference), the poll cannot be free and fair as (one assumes) our constitutional requirements demand. This could mean that the caveat to Article 50 has not been met.

    1. This is also of interest to me – it’s not yet clear what the full extent of a trip down the Cambridge Analytica/AIQ/SCL rabbit hole will reveal, but assuming for the purposes of discussion that a worst case scenario emerges & the democratic legitimacy of the result is _severely_ compromised, to the extent that it appears that Remain would have won a free & fair referendum, does that have any legal impact on whether we met the ‘constitutional requirements’ and thus the validity of our A50 notification? Or does that

    2. It is an interesting point: if the government hold (as they do) that the referendum was the decision, then surely with allegations of this nature and magnitude it must be a constitutional requirement to properly investigate the allegations and find them groundless…

  5. The A50 challenge always seemed like grasping at straws to me. The EU has accepted the notification. It’s not for the EU to decide whether the notification was legal or not. And even if a UK court did decide it was invalid, from the EU’s point of view they accepted it in good faith and the UK would be out anyway.

    They seem to have raised quite a bit of money which seems a shame since I think there are far more productive things they could do with it.

    1. Surely it is better to have the Article 50 challenge and any required legislation created (even if it ends up having no impact whether Brexit occurs or not) than to weaken our constitution, which as I understand it (I am not any kind of lawyer, never mind a constitutional one) would be the case given that it is constructed out of statute and precedent – ie if we do not follow the rule of law in constitutional matters then we will not have the rule of law going forwards in constitutional matters.

  6. I find it hard to believe we will be allowed to fall off the cliff edge of no further progress is made. Pannick’s arrow was useful argument but must we accept changes to fundamental rights without further intervention from the legislature?

    Surely there will have to be further legislation yet the clock is running down. How will it be passed in time? At some point Parliament will have to consider the ramifications of its actions.

    https://www.theyworkforyou.com/debates/?id=2017-02-07b.260.4#g302.0

  7. Nice analysis David. IMO A50’s rhetorical complaint should be expressed, legally, as about the limits on Parliament’s power to make (constitutional) Acts: that P cannot authorise PM to give A50 notice without P having *explicitly* resolved that A50 notice should be given. P must recognise that it is P’s decision (not EURef’s or PM’s).

    P explicitly authorised PM, and so clearly *considered* it had met any constitutional requirements for doing so. So Court’s legal basis for interfering would have to be that Parliament had enacted in error of the constitutional requirement (never previously explicit in jurisprudence) that Parliament had to make an explicit resolution to have power to make the enactment.

    This argument seems impossibly hard. The case seems like a bad one to try and develop jurisprudence on requirements for Parliamentary explicitness in matters constitutional…

    1. This, to me, gets to the heart of the matter. The article 50 act must mean *something*. I think it’s clear that Parliament believed it meant that everything had been satisfied such that May could and would go ahead and invoke article 50. Any attempt to construe it otherwise has to essentially argue both that parliament is incompetent at writing legislation, and that the act can’t possibly be taken to implicitly mean everything parliament thought it should. Benefit of the doubt in this case will surely go exclusively to parliament and against the A50 challenge.

      It seems, to me, to be pure wishful thinking, and novel but wholly moot undergraduate essays.

  8. Excellent post – clearly explained – and I tend to agree (I’m not a lawyer but this just seems to make sense). As I see it, the decision was ‘made’ the moment the PM used her authority under the A50 legislation to send the letter. Until she signed and sent that letter, the only decisions taken were that 1) she should (the referendum) and 2) she could (the A50 legislation) take that action.

    That said, this is also irrelevant (as I think JoK has mentioned elsewhere) – because leaving, while a legal process for the EU, is a political process for the UK. We cannot hope for a legal ‘technicality’ to get us off this political hook – it simply would not wash with the public. (Even those who favour remain would – I hope – concede that political decisions shoudl be made by politicians and that parliament remains sovereign).

    I consider Brexit extreme folly, contrary to our national interests and a betrayal of 40-years of successful diplomacy, not least the creation of the single market. However, I see no way of stopping this – barring some sort of cross-party parliamentary action, which would have its own ramifications.

    Instead, I think we are just going to have to go through with this. It may be painful – but sometimes that’s how we learn. We find our way in the world as much through our failures as our successes. Perhaps this is what the country needs to put paid to the imperial myth of English exceptionalism.

    We must now focus on the type of country we want to build after Brexit. The types of relationships we want to have with international partners. And the type of society and economy we want at home. I hope it will be liberal, open, and cosmopolitan in culture – practical, efficient, and local in politics – and enterprising, innovative and competitive economically .

    @HuwSayer

  9. I think this is right (much as I wish it wasn’t). IMO the essential fallacy is that the ‘decision’ should be a single act, whereas it’s a process (we speak of the ‘decision making process’).
    That process comprises the decision by the electorate to advise the government of it’s wish to leave the EU, parliament’s decision to endorse that advise (following intervention by the Supreme Court), and the government’s decision to issue the A50 notice.

    1. Except the whole process assumes that someone has made a decision somewhere.

      When we examine the process we find that at no point do we have a clear decision made, just that at some point the assumption that one has been made magically appears.

      Politically this may be hard to resolve, but that’s what we have politicians for.

  10. Nicely written as usual.
    Where the decision lies must depend on the meaning of “intent”. If I produce a knife and say, “I intend to stab you”, are you justified in shooting me on the presumption that I have made the decision?

  11. The argument about “Decision Not Made” is, as David points out, extremely flimsy.

    The wider issue is, and has to be, A50 Revocability.

    If Parliament were to have its “meaningful vote” and demand that T.May withdraw the notification (whether to flat-out halt Brexit, or as an action taken in good faith to carve out more time for negotiations) that would occur as part of the Constitutional Requirements. Would the EU27 then be bound to honour that? It’s why I’m far more interested in the Good Law Project seeking to get a ruling from the CJEU about it.

  12. I have no legal expertise/experience whatsoever so it’s probably not wise for me to attempts to interpret or challenge anyone on this thread on that basis.

    As a layman though, I have two main concerns about the whole process which I cannot get past and I’ve yet to receive anywhere near a satisfactory response.

    I voted Remain, but I also recognised that however unsatisfactory the mechanism was, it was important the result of the Referendum in 2016, be respected.

    1) I have become very concerned that the phrase “respecting the result” is being misinterpreted in Government quarters to mean “deliver at all costs”. I do not believe that was the intention of many Leave voters at least when I have asked that question?
    The Government certainly had a moral and political, if not Constitutional, obligation to take into account the advice of the Electorate, irrespective of the pamphlet promise, which was made without Parliament’s specific agreement. There’s no doubt Parliament and the Government took that advice and acted accordingly.

    However, Parliament has NO obligation whatsoever, as our sovereign institution, to implement that advice, if it subsequently concludes that advice is fundamentally flawed or erroneous, in light of experience, new information or a significant change in circumstances?

    In fact, Parliament has a moral AND Constitutional duty, NOT to implement the result, if that is what it believes is in the best interests of the country, irrespective of Party divide. Even if it means saving the public from themselves.

    That is the overriding function of our Representatives, in a Representative Parliamentary system.

    Parliament clearly took action to respect the result, but would be negligent in the extreme, considering the enormity of the issue, to treat it as sacrosanct, at any cost, in all circumstances?

    2) It is a disturbing fact of the process, as it is currently being implemented, that if and when a Brexit “Deal” is agreed, not a SINGLE voter will have had ANY knowledge of that deal, when asked for their ‘advice’ THREE years previously.

    Can we really be sure, in possession of that additional knowledge and in the light of subsequent experience, the slim majority registered in 2016 would still be representative of alleged “the will of the people”?

    Do we not have a responsibility to future generations to be absolutely certain, after 3 years of heated but stimulating debate and in possession of the terms of the proposed “divorce”, the people of the UK still want to leave the EU?

    The question put to the electorate, was not, after all, “Shall we leave the EU, no matter what the consequences”?

    Whatever path the UK eventually takes, it surely must take having made as much of as an informed decision as possible, and having ensured that what voters narrowly agreed to in principle in 2016, they continue to agree to three years further down the road, when better informed of the consequences of that action? Whether this is done in Parliament or by Referendum, the option of not leaving must be on the table, either to confirm voters are happy to convert principle into action or for voters to decide leaving the EU was not what they originally envisaged or that subsequent experience has altered their view?

  13. This is the first detailed critical examination of the merits this particular legal challenge I’ve read. I’ve seen plenty of people dismiss it as hopeless without bothering to explain why.

    It will be interesting to see exactly how the arguments are constructed, as like you, I can’t see how an even remotely persuasive case can be made. Though I’m sure that the legal brains working on this will have a sincere belief in the genuine merits of the challenge.

  14. What concerns me with all this is the clear fact that the government are now pushing the agenda that it is a done deal! The Prime Minister even toured the 4 kingdoms promoting that idea and it has been heavily picked up by the media and of course the general public that are the supporters of “Leaving”.
    There has been considerable discussion about how well Liam Fox is doing in respect of the trade deals or notional trade deals that he is apparently putting in place. There has been extensive articles and blogs written about how the EU is beginning to disintegrate for example Italy. The success of the new political party “5 star” was heavily promoted as being something wonderful.
    When Peugot publicised the proposed planned investment into Vauxhall commercial vehicles division they, the media went into overdrive about this but it has a large caveat.
    I do not have a legal background but given the evidence that is beginning to flow from the enquiry into the Cambridge Analytica and also the overspending by the Leave campaign, I would have thought that there is a duty on the government to consider very carefully how it takes matters forward and this aspect should be fully debated in Parliament.

    I can’t get over the feeling that we are being “railroaded” into something that even before the CA issue arose it was quite apparent that there was considerable concern across the UK about the prospect of leaving the EU.

    The article or the comments generally appear to promote the idea that it is a legal issue in the EU and it is a political issue in the UK but whatever happened to the economic arguments?

  15. Further to my earlier comments. I also have issues with two things you say in your blog:
    First, that the Referendum question, was “carefully worded”. I’m sure it was, however, I would contend there was NO single question that could possibly have been adequate enough to give an unequivocal answer?

    “Should the United Kingdom remain a member of the European Union or leave the European Union?”

    Does that question mean, for example “as a matter of principle” or “at any cost”?

    Either interpretation, in their different ways require revisiting the question to review whether the principle of leaving survives the reality of leaving, or if, the answer to the latter is “no” (as I believe most reasonable people would agree), at what point and what form does the “cost become too great”?

    Secondly, “the majority were elected in 2017 on manifesto promises to implement the referendum decision” is a heinous misrepresentation of the GE vote, at which Brexit was a factor but not the reason people voted on usual Party lines or with other issues, local and national, as their priority. Remainers did not suddenly become Leavers for one day, and back again, the next. There was no realistic choice at an Election where that specific question wasn’t being asked by the two main parties.

    1. …I’m not sure what you mean by this.

      Edwin Coe did, indeed, help marshall the forces in Miller/Dos Santos/Everybody vs SoS DExEU – In fact, at the RCJ leg of things, Mr Chambers QC made, IMO, some of the most salient legal points in the whole affair regarding Parliamentary Sovereignty (although much of the commentary was focused on Pannick vs Eadie)

      You’re not conflating David Greene of Edwin Coe, with David Allen Green of Preiskel & Co, are you?

  16. I think the political fall out of a ‘successful’ legal challenge would prove disastrous. It would play into the complaint about ‘elitist remainers thwarting the will of the electorate’.
    The only cure for the disastrous (in my view) referendum vote is, I regret to say, another referendum vote. Only that way can a decision to remain gain political legitimacy. This is a matter of politics not law in my view.

    1. One counterpoint to that – Yes, in those circumstances, the usual suspects will start with the wailing and teeth-ghashing, the inevitable flood of racists and Russian spambots will flood social media, and Farage might poke his odious little head above the parapet again (hopefully long enough for Robert S Mueller III to staple a summons to his quite substantial forehead).

      But what percentage of the electorate just don’t care? Brexit or no Brexit, doesn’t bother them one way or the other? Happy to go with the flow, referendum or no?

      The people making the most noise are the people who care. But do they have the numbers to actually swing an election, whether by voting themselves, mobilising turnout, or whatever?

    2. Except the result would (and should be) the quick cure that David proposes.

      A parliamentary act that *makes* the decision.

      This then clearly places responsibility on the right shoulders and should inform political debate in the country going forwards.

  17. Every time Theresa May has gone to court, she has eventually ended up with a clear defeat, to be circumvented by legislation, or with a ‘win’ delivering an inconvenient clarification of our amorphous constitution.

    In short, she always loses and the use or misuse of her powers is curtailed.

    It may well be that this latest litigation serves that end; I’m not sure that it’s worth it now – David Allen Green has pointed out serious weaknesses in their case – but we might all be grateful for the judgement’s not-so-unintended secondary effects, a year or two from now in Brexitstan.

  18. Have I missed the point slightly? My understanding is not necessarily that the Article 50 challenge intends to prevent Brexit, but to ensure that it is carried according to the correct process (constitutionally).

    A satisfactory outcome would be the quick cure that you propose.

    (Some may argue that this would be pointless, but I think it is important that the robustness of the process is defended).

  19. As you say, the ‘ decision’ element remains elusive and has to be implied, rather than uncovered. That our future as a country should rest ( ultimately) on an inference, is troublesome wherever we might find our constitutional arrangements for so doing. Perhaps the Supreme Court, in the glare of Pannick and Eadie’s dazzling arguments were led away from this obvious point, (rather like the self-denying ordinance by all parties to Miller not to address Article 50 (2) in the context of revocability). Perhaps had the court had the benefit of your own clear argument we might not now be where we are. Nevertheless, an advisory referendum is not a mandatory instruction to implement at any price even if it provides a strong mandate to pursue the outcome the electorate decided it wanted. No amount of implication can transform such a deliberately worded plebiscite, even with parliamentary into a decision, even when aggregated with other elements of our parliamentary framework ( statute, vote etc). Curing the defect may indeed be a short lived victory but we are on a path to leave the EU for at least one or two generations, maybe permanently. If doing it scrupulously correctly legally is needed, any delay is a price worth paying for its legitimacy.

  20. Absolutely correct, (it should be a political decision) I believe there is another case underway to determine whether Art 50 can be ‘unilaterally withdrawn’ by the UK government, I wonder if you know of this and have any view on its progress or otherwise? It seems to me the surest remedy to what in my view is at best a misadventure and at worst demonstrative of our collective stupidity is to get Parliament to instruct the executive to withdraw Art 50, if it is possible to do so unilaterally.

  21. I can only say that most of the people I know who voted leave are now either remain or on the wobble. No one likes to be wrong and it takes maturity to admit it, even among friends.
    I think we are all similar beasts, I want to change my mind but I don’t want to tell everybody, I don’t want to be seen as weak and wobbly, what do I do, I wait for the vote; If it comes.

    No Government should take such a Great and Dangerous step without the will of the people at the time of doing so and that folks is too close to call with the polls showing Remain just ahead and another putting leave in the lead.

    As the time of actually leaving nears, most people will have the jitters, not just the remain voters but all but the most hardy leave supporter will also feel those jitters and many will want to turn back to the security and comfort we have within the largest trading market in the world.

    Again as the time nears, the jitters will worsen and more people will feel concern, insecure and believe that we will be vulnerable, floating loose in this most unpredictable and very dangerous world.

    It is only when those jitters break through to the surface that the true wishes the people will become evident, when we realise that the future of our country is more important than our personal pride at being wrong and let our true and informed opinion be known.

    Then I believe we will see a massive swing to remain, so great and heartfelt that any Government representing the people, Must agree to a second referendum.

    1. Excellent points but I do not know a single person who voted leave that has changed their mind – some who voted to remain have been repulsed by the stance the EU has taken and are now more than happy to leave.

      On some of the other points we cannot withdraw article 50 because we know what damage will be done as nobody can predict the future – not a single person has a clue how things will turn out and it may well prove to be the best decision in the long run. There is much propaganda and scaremongering from both sides with vested interests.

      1. Change is possible. All of my family voted Leave and all have changed their minds. My sister changed her mind before the polls even closed. Farage’s statement on breakfast television the next day confirmed her view and Johnson and Gove’s faces at their press conference were the final nails in the coffin. She sincerely believed that the NHS would get an extra £350m a week, as did my other family members. They now realise they were lied to and my sister has also written to her MP to say she regrets her vote.

    2. I note all these well-meaning sentiments about remaining and security/jitters etc. and the comments about the need for a 2nd referendum that should be undertaken when most people whether leavers have changed their opinion or remainers have crystallised their views.
      Isn’t it now clearer that there is an ever-growing majority who would wish there to be a further referendum. I wonder just how that is measured as at present it seems to be reliant on polls. Most of the press preserve the BREXIT position backed up by most of the Media TV/Radio News and opinion in non-newsprint programmes where pundits face the bias of the chair or commentators. Notwithstanding that there is a strong concern and it does not appear to be expressed in Parliament adequately.
      We now have a PM who is happy to call her party’s bluff with a “confidence vote” in the next few weeks knowing that it is most likely the Conservatives will all line up and the Labour position is blurred on BREXIT. Quoting Burke is a great reminder but mostly ignored by the MPs who don’t take the national interest any more on BREXIT or lamely still quote that it was majority decision. They seem more than happy to ignore the GFA.
      There is clear evidence that all was not well on the voting front in June 2016 with evidence of unfair voter manipulation; let alone the amount of money spent by the “leavers campaign”.
      We appear to be living in an era where our leaders have put their head in the sand on BREXIT, or worse they are too scared of possible citizens revolt on the streets from the worst elements of Brexit. Race hatred crimes are on the increase but poorly reported.
      Worse is the plain fact that the media let alone the Government endeavoured to paint a rosy position a week or so ago pointing out that Brexit negotiations were a done deal!
      The legal reliance is not well publicised or is being sidestepped by the MSM. One is reliant on the odd article in a newspaper and of course this type of blog. There is of course twitter. The trouble with the latter is that it attracts claimed Brexit supporting economists who advise that World Trade is guaranteed to replace the CU etc. One suggested recently that we will obtain coffee beans much cheaper. When I suggested that it would not replace the many 1000s of SME that were reliant on the CU market I was told that I was an idiot. When I also pointed out that the GFA was a significant issue this resulted in some loony claim that the IRA were behind the beef deal at the time of the GFA?
      Economist I believe now number in the order of 23:1 have reported that leaving the EU will result in poorer families as an absolute minimum. These opinions do not seem to sway the people or the additional fact that companies are now planning on relocating. There is now doubt that Nissan will continue with production in the NE. Airbus may well follow. There are potentially many others in the pipeline. The Government initially supressed reports on how damaging it would be to various regions the exit from the CU would be. This was also mostly ignored or was headline for a couple of days in MSM
      Writing to the local MP is a waste of time if he/she is BREXIT supporting.
      Perhaps we should all take to the streets and protest but despite this personal whim reliance on the Government falling is growing weaker. They don’t even resign when proven to lie or run a department that is in shambles.

  22. I fear that you are pushing the idea of a process that everyone is engaged too far. The deliberate parliamentary limitation of the effect of the Referendum to ‘advisory’ was enhanced by a campaign promise of the then Prime Minister that he would notify the EU of the intention to leave on the day after the result. This promise was in itself not a decision and the referendum result did not make it so but it did condition many people to declare that the result was indeed mandatory on Parliament and the country at large. Now I think, that campaign promises have to be implemented in law before they become enforceable. A manifesto, although it has some constitutional role in managing the House of Lords, is not in itself legislation. But the sleight of hand that took the combination of advice and promise to make an overwhelming victory out of a marginal preference was and remains political magic, not law, and induced the Government to claim prerogative powers to notify along the lines of Cameron’s promise. The Miller decision put some delay on this, but it seems to me that the decision to leave the EU is assumed by the brief legislation but not contained in it. Given the earlier process of advice and promise rather than legislative implementation of the promise, the decision to leave is missing and claiming that everyone was engaged is insufficient and will not do.

  23. I’ll be even more straightforward: how is the notification letter not a decision in itself ? When you notify in writing your landlord that you leave the property, that letter is both the decision and the notification of the decision, no need to look for some kind of mythical point when the decision to send the letter was reached.

    1. Exactly – drafting the letter was not the decision – not even signing the letter (the PM could have put it in a draw and left it there) but the decision to write, sign and send the letter is a clear decision taken by someone with the executive power to make that decision and send that letter (as authorised by parliament).
      The people said we ‘should’ leave – parliament said PM ‘could’ send notification – PM decided we ‘would’ leave and sent the letter.

  24. The S.S U.KTItanic was in mid ocean. A minor spat in the crews quarters resulted in the Capt seeking his passengers opinion for an Advisory resolution.
    The decision, when it came, required the Capt to go full steam ahead. The huge icebergs that lay in wait en-route could be safely navigated by this unsinkable leviathon.
    The Capt was less certain. A lack of lifeboats worried him so he immediately jumped ship.
    His passengers continued their journey. Food, drink and entertainment was uninterrupted. The crew remained split but accepted their passengers decision. Some continued to serve. Others became sullen, concerned about the bergs ahead and worsening weather. The leviathon sailed on. The newly promoted Capt reassured her crew. S.S U.KTItanic was strong, stable, unsinkable and would dock on schedule. The passengers, well fed and watered seemed happy enough. With midshipman Davis in the crowsnest, on the lookout, what could go wrong.
    At full steam, she ploughed on. The sea conditions appeared calm. A number of large icebergs had been spotted, negotiated or safely evaded. Then, on the horizon, the strangest thing. A luminescent green iceberg, huge in size. Davis issued a change of course. Starboard, then Port. To no avail. The berg remained dead ahead. Was there no way to avoid a collision?
    (to be continued)

  25. Article 50 can still be withdrawn. It is probably the only means of stopping Brexit. DAG has been exemplary in his analysis and reasoning although the British Constitution is somewhat less than clear.

    I suspect the A50 Challenge will be ‘deemed out of time’ – it solves a lot of ‘problems’ for HMG…. even though it has perhaps more merit than DAG suggests.
    More interesting is the 2011 European Union Act which in my view should only be repealed by the full H of C and H of L, NOT by whim of any Minister. Voters voted in the Referendum with the knowledge that any new Treaty with the EU would require a Referendum. The government should not seek to abolish that act in hindsight.

    You will note that currently HMG are trying to subvert this legislation and repeal it on the sly. This is not fair to the electorate who could justly claim prior knowledge that the 2011 Act would apply on any new Treaty with the EU.

    1. One of the important features of the current discussion is that citizens (strictly subjects I guess) are seeking to ensure that the Government operates according to Law through the Courts. Miller was an interesting step here that forced the executive to actions that it would not otherwise contemplate. It seems to me that much of what is being done now is by sleight of hand and by avoidance of confronting hard legal issues. Moreover Parliament has thus abdicated its role as referee in the face of the ‘Will of the People’ deception. Thus the rigour of the Law has to be brought to bear to rein in governmental over-reach. We are infected, for good or ill, by Supreme Court politics, imported from the US, since the legislature is weak. The Government seeks to keep another court, the ECJ, out of its hair as part of Brexit, but this was not on the ballot paper and determination to remove the influence of courts is a bad sign in a government.

      So we have to keep pushing on each front in the confrontation with the government. One such front is in the courts, who need to have their hour.

  26. “One would think that Parliament conferring power on the prime minister to make the Article 50(2) decision means that Parliament accepts that the prior Article 50(1) decision has been made.”

    One might indeed think that, but in order to accept that referendum was the decision, parliament must treat it as an authoritative instruction; a mandate issued, which the members are bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience…
    I would expect most readers to recognise the words of Edmund Burke, but for any who don’t, the full speech is here: http://press-pubs.uchicago.edu/founders/documents/v1ch13s7.html

  27. The article 50(1) decision is a technical decision that indicates an intention. It only becomes enforceable after the notification under article 50(2) has been served. This would be similar to the decision to enter into negotiations to join the EEC with the EC Act 1972 being the act that committed us to the action of joining (equivalent to the article 50(2) notice)

    The decision to enter negotiations to join the EEC (and negotiate subsequent treaties) were all taken by a vote in cabinet. Therefore the the UK’s usual constitutional manor to meet the article 50(1) requirement is a vote in cabinet.

    1. I think it was clear in Miller that the wholesale removal of citizens’ rights in the process of leaving the EU provided a clear constitutional distinction from an action like negotiating to join. So there is no equivalence between the two acts, even if they concern the same international relations.

    2. The High Court in Miller disagreed that Cabinet could take the decision.

      “The High Court’s judgment contains this passage (Paras. 15 to 17):
      Is the challenge by the claimants a challenge to the decision to withdraw or giving of the notice?

      There was some debate about whether the claimants’ challenge is properly to be regarded as a challenge to the making of a decision to withdraw from the European Union under Article 50(1) or a decision to notify the European Council under Article 50(2).

      In our view, nothing really turns on this, since it is clear that the two provisions have to be read together. The notification under Article 50(2) is of a decision under Article 50(1). If the Crown has no prerogative power under the constitutional law of the United Kingdom to give a notice under Article 50(2), then it would appear to follow that under the provisions of Article 50(1) it cannot, on behalf of the United Kingdom, acting solely under its prerogative powers, make a decision to withdraw “in accordance with [the United Kingdom’s] own constitutional requirements”.

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