Brexiteers and the story of the would-be time-traveller

2nd August 2016

There is a story about a child that wants to travel back in time.

The child goes to one adult – a silly adult – and tells them about wanting to travel back in time.

The silly adult tells the child: you cannot, this is not possible.

The child then goes to another adult – a wise adult – and tells them about wanting to travel back in time.

The wise adult tells the child: have a go, and see what happens.

*

There are some Brixiteers who think Brexit is easy.

To take two prominent examples , here is Conservative MP Bernard Jenkin:

“Leaving the EU is in principle straightforward; much easier, in fact, than joining since it is not necessary to change domestic laws and regulations. All the laws and regulations that apply by virtue of Britain’s membership can remain perfectly aligned with those of the rest of the EU until they may be changed at a later date. This is how the UK gave independence to the countries of the British empire.”

And here is another Conservative MP, Jacob Rees-Mogg:

Leaving the European Union is unquestionably a big decision but it is not a particularly complex one. Article 50 is easy, the royal prerogative is clear and the law is stable. Additionally the political will also seems to be present to make it happen and to work.

Please read the pieces in full, if you can, so you can be sure they are not being misrepresented.

My view, for what it is worth, is that Brexit will not be easy.

But if the proponents of an easy Brexit are right, then the view that Brexit is hard will be disproved soon enough.

So there is no point arguing about it.

Like the wise adult of the story, perhaps one should just say to the proponents of an easy Brexit: have a go, and see what happens.

**

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Article 50 and Brexit: Are Estragon and Vladimir on the move?

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13th July 2016

What can we make of the cabinet appointments this evening of Boris Johnson, Liam Fox, and David Davis?

Do the appointments mean Brexit is more likely or less likely?

Are they the Three Musketeers – Three Brexiteers – or are they the Three Stooges?

*

Of the three appointments, the one which should worry Remainers is that of David Davis.  It is a serious appointment.  He was an outstanding Chair of the main Commons watchdog committee, the Public Accounts Committee, and a competent Europe minister.  He is not a politician to underestimate.

That said: there is the irony that, because of his genuine civil liberties concerns, he is currently suing the UK government at the European Court of Justice so as to enforce EU law.  Not the most appropriate thing a Brexit minister should be doing, one may say.

But what difference will the appointment make?

*

On the day of the referendum result, I contended that the longer the delay, the less likely the UK would send the Article 50 notification.

This is not because of any lack of political will: it is because of the sheer policy and legal challenges of Brexit are such that delay will invariably mean events and excuses will come into play.

I still hold that view – but the appointment of a serious player like Davis does prompt a slight wobble.  If there is any Brexit politician who can do it, it would be him.

Estragon and Vladimir are still not getting up, but one could detect a twitch this evening.

**

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Cavaliers and Roundheads: four thoughts about the Article 50 litigation

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11th July 2016

There are three potential cases against the government on Article 50, demanding that the ultimate decision on Brexit be made by parliament and not the prime minister under the royal prerogative.

Two of these cases (the Mishcon de Reya and Dos Santos cases) are described in my post here, and the third (the Bindmans case) is set out at Jolyon Maugham’s blog – including a detailed letter which should be read in full.

Of the three:

– the Mishcon de Reya case is the most well-known (thanks to a savvy press release);

– the Dos Santos case the one most progressed (with a claim form and a date of 19 July 2016 for a preliminary hearing), and

– the Bindmans case the one where most information is in the public domain.

It is disappointing that in such potentially far-reaching public interest cases, there is so far little information in public domain on two of the potential claims.

That said, there are perhaps four general points worth making.

*

First: the government will not want to litigate these cases.

This is for two reasons.

One is obvious: the government will not want to lose a case on this particular issue.

The other is more subtle: the royal prerogative is a valuable tool for the executive.  The fiction is that it is exercised on behalf of the crown by her majesty’s ministers. The reality is that it gives ministers legal powers without any visible means of legal support.

The possibility of having an adverse decision on the scope of the royal prerogative will make government lawyers highly nervous – especially with, say, David Pannick (the barrister on the Mischcon de Reya case) on the other side. Who knows what the High Court, the Court of Appeal, the Supreme Court could rule… (government lawyers would be shuddering at this point).

*

Which leads us to the second thought: these cases may not get to trial.

In two of the case, this is a trite observation: there does not even seem to be a formal “letter before action,” let alone an actual claim.

But the government really will not want these claims to progress, and so the government will want to get rid of them if they can.  This may be by successfully opposing the claims at the preliminary permission stage – or it may be that the government offers an apparent concession, such as a promise that there will be a parliamentary vote before an Article 50 notification – formally distinct but effectively connected.  I deal more with this possibility at my FT post today.

What I think the government may say that there will be a vote to repeal (or amend) the relevant EU legislation, but any repeal (or amendment) will then be suspended pending the outcome of the Brexit process.  If the vote is lost, however, the Article 50 notification cannot proceed.  It would be giving the Article 50 decision to parliament in all but legal form, whilst preserving the precious royal prerogative.

If faced with such a concession, the courts may be minded to leave the case alone.

*

Which brings us to the third thought: the courts will not be eager to decide this case.

This is not because the case lacks inherent interest: members of the legal profession have been considering these questions since law school, and the respective powers of the crown and parliament was probably the first topic they wrote an essay on.  Judges would love to discuss this case in a seminar or at their bench table.

But they will not want to decide this one in court unless they have to.  This is for two reasons.

First, it is ultimately a political question which should be resolved by parliament. It may well be that the question can be framed in a legal(istic) way about the correct construction of Article 50 and what “constitutional requirements” are or are not. But the judges will not want to be dragged in easily into a political dispute about the outcome of a popular referendum.

Second, the remedies sought in these cases appear to be “discretionary” remedies – such as declarations or injunctions.   A discretionary remedy – unlike the award of damages in a contract or tort claim – is not something a claimant can demand as of right. Even if a claimant can make out their case, the court can still decline to grant the remedy if it serves no useful purpose or is futile.

So even if the case is heard, it is not certain the court will then do anything.

*

Which leads to the final point: there is no clear legal outcome to the claims.

Nobody knows for certain what the courts would decide, even if the courts are minded to hear the case and grant a remedy.

Views differ. On the “parliamentarian” side you have Pannick and other distinguished constitutional lawyers, and on the (forgive me) “cavalier” side you have Professor Mark Elliott, perhaps the UK’s leading public law academic and others. These people disagree fundamentally and in good faith (and in good humour).

It is not a “given” that the parliamentarians will win, even with crowd-funding and so on.  The fact that government lawyers will want to head off the claim can be explained by prudence and not resignation.

(For what it is worth, I think both the parliamentarians and cavaliers are correct, and Article 50(1) is wide enough to cover both the exercise of the prerogative and a parliamentary Act as a decision).

*

So in summary: you have cases the government wants to close down, cases which the courts will hear and decide only if they have to, cases which may not lead to any decision or remedy, and cases where it cannot be predicted which side is most likely to win.

Whatever happens will, however, be fascinating for anyone interested in law and policy.

**

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The two Article 50 legal claims – the current details

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8th July 2016

There are a couple of legal claims in the news about Article 50. (On Article 50 see my post here.)

The Mishcon de Reya claim

One is connected to the law firm Mishcon de Reya.  The potential litigants have not been disclosed.

This potential claim has been widely reported in the media.  The press release is here.  I made a some comments on this claim at this post.

I understand that this claim is still at pre-action correspondence stage. There has been no claim form or letter before action.

The Dos Santos claim

The other claim is in the name of Dier Dos Santos, a UK citizen.

This claim is at a later stage, and today it was reported that there will be a hearing on 19 July 2016.  I understand that this will be a permission hearing, rather than a substantive hearing.

So far I can establish the following about the claim.

The claim is by means of an application for judicial review.

The claim was issued on 28 June 2016 and served the same day.

It was issued at the High Court in London.

The remedies sought seem to be (a) a declaration and permanent injunction and (b) an interim injunction.

The respondent was originally stated to be HM government, but I understand it now in the name of the Chancellor of Duchy of Lancaster (the somewhat daft formal title of the Cabinet Office minister Oliver Letwin).  In effect, however, the respondent will be the Crown.

The declaration sought is that a “decision” for the purposes of Article 50(1) has to be a decision taken by parliament, and not under the royal prerogative.

(A declaration is a discretionary remedy of the court which “declared” the correct legal position where there is a dispute.  It is a remedy sometimes used when there is no dispute of fact, only a genuine and important dispute as to the meaning of a legal instrument such as a statutory or a contractual provision.  The court can the “declare” what the provision really means – but only if it wants to. As a discretionary remedy, no person has the right to such a remedy.)

I believe the permanent injunction sought is so as to restrain the UK government from taking (or purporting to take) such a decision under the royal prerogative and/or making the notification under Article 50(2).

The interim injunction sought is to have an order in place stopping the UK government taking (or purporting to take) a decision under the royal prerogative and/or making the notification under Article 50(2) until the High Court has dealt with the case.

The reason why the injunctions are required is that once the notification is received by the EU Council, the horse, the genii, and the cat are all out of their respective receptacles, and it passes from being a domestic matter and becomes an EU matter.  When the notification is received by the Council then there would be little that a domestic court can do.

**

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Parliament, Article 50, and the Leave Paradox

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4th July 2016

The news that there may be a legal case about whether any Article 50(1) decision has to be by Act of Parliament perhaps creates a paradox for the Leave side.

The paradox can be characterised as follows:

Leave Supporter: “We want our own Parliament to be sovereign on matters to do with the EU!”

Response: “Like on whether to Leave then?”

Leave Supporter: “No.”

Those who campaigned Leave so as to uphold Parliamentary Sovereignty are now unhappy at prospect of Parliament being sovereign about whether to Leave.

**

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The Mishcon de Reya legal challenge on Article 50 – some thoughts

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3rd July 2016

News has just broken of an Article 50 legal challenge being proposed by the well-known London law firm Mishcon de Reya.

The press release is here.

Here are some initial thoughts.

First, it is not disclosed who the potential claimants are.

Given that the claim goes to a fairly fundamental topic of public policy, it is rather odd that is not disclosed who is proposing to bring the claim.  The press release mentions there has already been correspondence with the government lawyers – so presumably the potential claimants are known to the government.

Second, it is not clear what has actually been done.

“Legal steps have been taken” could mean anything from mere  pre-action correspondence, to a formal Letter Before Action, to the issue of a formal claim. “Legal steps” has no particular meaning at law – it is a press-releasy sort of phrase.

Third, it is not clear what remedy is being sought.

A good guess that it is for a “Declaration” on what Article 50(1) requires as a matter of English (and Welsh) law. A “Declaration” is a discretionary remedy of the courts (you are not entitled to one just because you ask for one) when the correct legal position on something which needs to be established.

(Presumably there will also have to be similar actions in Scotland and Northern Ireland too – it cannot just be assume that all UK jurisdictions will follow what a London court says on this.)

I cannot think what other remedy the claimants could be seeking – for example, a court would not lightly injunct the government from making a notification, and there is no decision for the courts to quash.

Fourth, two of the barristers mentioned as having been instructed have recently published articles on why an Act of Parliament is required for the purposes of Article 50(1).

David Pannick’s article was in The Times,  and Tom Hickman co-authored this at the UK Constitutional Law Association site.

Fifth, it will be interesting what the government’s response will be.

If the government says in response that an Act of Parliament is what will be required then the litigation will go no further.

Sixth, if the action proceeds, then there is the prospect (if permission is granted to bring the claim as there is a permission stage before a substantive stage in judicial review cases) of a public hearing – with the incomparable Pannick as one of the advocates – and then a reasoned decision on what is required by Article 50(1).  It may even go quickly to the Supreme Court.

This would be a fascinating case to say the least for anyone interested in law and policy.

Last, if the government concedes there has to be an Act (or if – dramatically – the courts declare that an Act is required) then Brexit becomes even less likely.

**

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Does Article 50 require an Act of Parliament? A brief thought-experiment.

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3rd July 2016

Here is a question: would a decision by the United Kingdom to withdraw from the European Union require an Act of Parliament?

On this question, one week or so after the referendum vote for Leave, it may be fairly said that “views differ”.  Some constitutional lawyers say one thing, others say the other.

In favour of an Act of Parliament being the only way, see David Pannick in The Times, Nick Barber, Tom Hickman and Jeff King on the UK Constitutional Law Association site, and Adam Tucker at the same site.

In favour of it being just one means among others, see Carl Gardner at Head of Legal and Mark Elliott at Public Law for Everyone.

When the views of experts differ it is a temptation to just shrug with despair.

Nobody would blame you.

*

This post sets out a contention – based on a thought-experiment – that an Act would not be required.

An Act could be a means of the decision being made – on that point views do not differ – but it is not the only way.

What follows is that contention – but please note this post is a (minor) contribution on one side of a debate rather than an (attempt at) objective exposition of an area of controversy.

*

First, let’s remind ourselves of the relevant parts of the first two paragraphs of Article 50 (I have omitted some not relevant text):

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.

The key question is what is a “decision” in accordance with the UK’s “own constitutional requirements”.

*

Second, let’s consider a thought-experiment based on a counterfactual situation.

Think back to last Friday, the day the result of the referendum came in.

Consider now the following facts:

– a national referendum had taken place in accordance with a statute passed for the sole purpose of that referendum;

–  33,577,342 voters voted in that referendum (72% of the electorate);

– there was a clear (if narrow) vote in favour of Leave;

– the Prime Minister had said expressly at the beginning of the referendum campaign that “If the British people vote to leave there is only one way to bring that about – and that is to trigger Article 50 of the Treaties and begin the process of exit. And the British people would rightly expect that to start straight away”; and

– the government had expressly stated during the campaign “This is your decision. The government will implement what you decide”.

Taking these five facts, imagine now the Prime Minister (by himself or after consulting with Cabinet) taking the decision (or purporting to take that decision) on that Friday that the UK had decided to withdraw from the European Union in accordance with its own constitutional requirements.

There had been a special referendum passed by Parliament for the purpose, there had been a heavy turn-out and a decisive result in the vote in that referendum, and the government had stated clearly that the decision would be implemented and the Article 50 straight away.

Imagine now the Prime Minister that same Friday had been minded to notify the European Council of such a (purported) decision.

What would be the legal position if some wily litigant- lets call her Ms Haddock – had been quick enough to make a legal challenge that same day?

I cannot see how the courts would have seen the claim as justiciable: there had been a special referendum with a clear result on a high turn-out and the government had moved to implement the decision straight-away as it clearly stated it would do.

Even if the court had allowed Ms Haddock’s claim to be heard, I cannot see how it would have quashed the decision or injuncted the Prime Minister from notifying the European Council.

Not only would there have been an uproar as the courts blocked the popular decision (and significant economic instability), one suspects the courts would have said that to interfere in the decision and the notification would be a violation of the separation of powers.

Our litigant Ms Haddock would have lost.

In other words: for the Prime Minister (with or without cabinet) to make such a decision and notification would not be unlawful.  It would thereby be lawful.

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The thing about questions of law is that the legal position on day one should normally be the same as the legal position on day ten, if the law and the facts are the same.

If so, then if the Prime Minister today – or in September, or whenever – took the same decision and made the notification then it would be just as lawful on day ten than on day one (assuming the law or facts have not changed).

As a normative view, I agree that an Act of Parliament (or a resolution or motion in Parliament) should be the method: the referendum was not legally binding – whatever the government said – and such a significant decision should be made by Parliament.

A vote by Parliament would also provide convenient cover for a government reluctant to press the Article 50 button.

(It may well be that the legal position changes, and Parliament passes a resolution or motion that the final decision has to be made by itself.)

But I cannot see how a decision on notification made by the Prime Minister on the day of the referendum result itself would have been quashed or injuncted by the courts, had Ms Haddock brought a claim to block it.

If that was true on that day, that would be true now, all other things being equal.

And if this is correct, then presumably an Act of Parliament is not the only means by which the Article 50(1) decision can be lawfully made.

**

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Article 50: decoding Donald Tusk’s careful remarks

 

29th June 2016

So: Prime Minister David Cameron avoided blurting out any notification under Article 50 at yesterday’s European Council meeting.

This daft attempt yesterday by the European Parliament to bounce the UK into making such a notification failed:

5. Warns that in order to prevent damaging uncertainty for everyone and to protect the Union’s integrity, the notification stipulated in Article 50 TEU must take place as soon as possible; expects the UK Prime Minister to notify the outcome of the referendum to the European Council of 28-29 June 2016; this notification will launch the withdrawal procedure.

But the remarks of the President of the European Council Donald Tusk (who, unlike the blustering Jean-Claude Juncker, is to be taken seriously in all this) which followed the meeting repay close attention.

(The European Council is the important EU body to watch regarding Brexit: in comparison with the Council, both the European Parliament and European Commission are weak schools of postures.)

The key paragraph of the remarks is as follows:

“Most importantly, Prime Minister Cameron outlined the results of Thursday’s referendum. Respecting the will of the British people, we all recognized that a process of orderly exit was in everyone’s, and especially, in the UK’s interest. Prime Minister Cameron undertook that the decision to trigger Article 50 of the Treaty on European Union be taken by the new leadership in Britain. Our discussions were calm and measured. Leaders understand that some time is now needed to allow the dust to settle in the UK. But they also expect the intentions of the UK government to be specified as soon as possible. This was a very clear message which I believe Prime Minister Cameron will take back to London.”

A few points can be fairly made about this wording.

First, Tusk accepts the Article 50 notification is to be made by the next UK Prime Minister, and that the decision has not yet been made by the UK to make that notification.

Second, he accepts the merits of delay: “that some time is now needed to allow the dust to settle in the UK”.

And third, and this is very subtle – see how he describes the referendum outcome: “the results of Thursday’s referendum”.  Note how he uses “results” not “decision” – and carefully uses the plural form in doing so.

These remarks, by themselves, do not mean that the Article 50 notification will never be made; but they do mean that the European Council accepts that the referendum, by itself, was not the (or, even, a) decision, and that the European Council accepts that there should be delay in the decision being made.

**

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Article 50: where are we now?

26th June 2016

Law and politics are separate things, and they do not often overlap.  It is rare that politics is driven, or even shaped, by legal process or any legal issue. But it does happen sometimes, and it is happening in the United Kingdom at the moment.

The legal issue is about a provision in a European Union treaty known as Article 50, which deals with Member States leaving the EU. The provision has a binary nature, in that the provision is either invoked (or activated, or whatever verb you want) or it is not. That is a legal question. If the provision is invoked, then there are certain legal consequences, and if it is not invoked then there are not those legal consequences.

Until a couple of weeks ago few people in the UK, and almost no politicians or pundits, knew or cared about Article 50.  What was important for them was instead something which had no real legal significance (even if politically significant), a non-binding referendum on whether the UK should remain part of the EU.  That referendum also had a binary nature: you either voted Remain or Leave.  As it happened, a couple of days ago, the clear (if not large) majority of voters voted Leave.

Now a problem in UK politics comes from a mismatch – a disconnection – between the result of the referendum vote and the invoking of Article 50. One has not automatically led to the other, and it may not do so.

The supporters of Remain campaign did not think about this, because they thought they were going to win.  But the supporters of the Leave campaign also did not think much about this, as it seems they regarded winning the referendum as an end in itself to bring about their desired “Brexit”.

It appears that few if any people involved in the campaigns on either side thought about what would come next in the event of a Leave vote.

On the day the result of the referendum became known, the Prime Minister David Cameron did not do something, and I believe the omission was significant (I have discussed this here).

In essence, Cameron did not invoke Article 50: no notification was sent to the European Union.  In my view, the failure to send the notification on the very day after the referendum will mean that there is a strong chance it will never be sent at all.

Since the referendum result there has been considerable media and political discussion and speculation about Article 50.  This post examines a few of the contentions which have been made about Article 50 – in particular the first two paragraphs of the Article – and sets out whether they seem good points or bad points.

The best place to start is the provision itself.  Article 50 contains a sequence of stages which are separated out as numbered paragraphs.  I will set out the Article as a whole, and I will then go through paragraphs one and two in particular.

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.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

So, to begin with, let’s look at paragraph one of Article 50:

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

What does this mean? I think there are two key elements to this.  The first is “decide” and the second is “in accordance with its own constitutional requirements”.

The reference to “decide” is crucial. It means there has to be a decision.  Without a decision, nothing else follows. It is the Marley’s Ghost of Article 50.

The provisions which come afterwards in Article 50 do not even become engaged unless there is a decision.

So what is a decision?

In my view a decision in a UK context may be one of a number of things:

– a decision by the Prime Minister in accordance with the “royal prerogative” (that is, in accordance with the legal fiction that the Prime Minister can exercise powers on behalf of the Crown);

– as above, but the decision being made by the Prime Minister either in consultation with his or her cabinet, or after a vote of cabinet (or conceivably the same but with consulting the Privy Council instead);

– a decision by the Prime Minster following a resolution or motion in either House of Parliament or by both houses;

– a decision not by the Prime Minister but one embedded somehow in a new Act of Parliament (or a special statutory instrument or “order in council”), or a decision made in compliance with an existing statutory or similar regime; or

– any of the above following consultation with – or even the consent of  – the devolved governments of Scotland, Wales, and Northern Ireland.

Any of these would be a decision for the purposes of Article 50(1). And each would be decision it would be fair and plausible to say is “in accordance with [UK’s] own constitutional requirements”.

The UK does not have a codified constitution.  Some would say it has not got a “written constitution” (though my view is that the UK constitution is (largely) written down, it is just not written down in one place; it is instead spread out over many texts and legal instruments).

But what the UK constitutional does not have, at least not in any explicit way, are prescriptive “constitutional requirements” – where one could point to a text and say: A-ha! That is how to make a decision to exercise a power under an existing treaty!

Without such a helpful provision, one can only look at how formal decisions can be made by those with political power in the UK, and the five examples set out above seem to all meet the Article 50(1) wording: they are “decisions” made “in accordance with [UK’s] own constitutional requirements”.

What does not meet the Article 50(1) wording, either as a “decision” or something made “in accordance with [UK’s] own constitutional requirements” is the mere result of a non-binding referendum.

The referendum on EU membership was advisory not mandatory. It was deliberately drafted by Parliament not to have any legal consequences.  (The last UK-wide referendum, on the AV voting system, did have such a binding provision, but this time Parliament chose not to include one).

As such, the result of the poll has no more legal standing than the result of a consultation exercise.  It was a glorified opinion survey, and that is what Parliament intended it to be.

The result is not a “decision” for the purposes of Article 50(1) and, on this basis, the other provisions in the provision are not engaged.

(For more on this, see this excellent post by Professor Mark Elliott.)

In my opinion, it could have been open to the Prime Minister on Friday, either on the basis of the royal prerogative or after involving the cabinet or the Privy Council, to have made the “decision”.  It was not even a decision to enter a new international treaty but to exercise a power within an existing one; in other words, it is the sort of decision a Prime Minister can usually make.

When the Prime Minister chose not to make that decision, that was a matter for him; and he in turn said it is a matter for his successor.

There is also a point about the devolved governments of Scotland, Wales, and Northern Ireland.  If the governments of any of the devolved states chose to (somehow) formally to object to the Leave decision then that opens the issue of whether the decision to Leave “in accordance with [UK’s] own constitutional requirements”.  

This is not to say there would be a legal bar – but in an un-codified constitution, force is given to “conventions”, as well as laws.  It would seem that many believe it is arguable that there is a convention at play here – that there should be consent by the devolved governments, even if not an absolute legal requirement.

As Article 50(1) talks vaguely of constitutional requirements”  it seems to me that a convention may be as capable of being a constitutional requirement as any statutory provision.

In other words: say if the Scottish government chose to formally object to a Leave proposal then it may make it harder to make out that the “in accordance with [UK’s] own constitutional requirements” element of Article 50(1) has been satisfied.

This is not (strictly) a legal point – as Professor Elliott explains in another post – but I still think it can still be significant in terms of Article 50(1): for if a convention is breached then a constitutional requirement cannot have been met.

But in any case, it certainly will be significant in terms of politics.  Not a formal veto perhaps – but important.

We now come to Article 50(2):

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.

Remember this paragraph only even matters if there has been an Article 50(1) decision – if there is no decision, Article 50(2) falls away.  In effect, we don’t get past the fifth word of this rather wordy paragraph.

But it is not the fifth word which has been much-discussed over the last couple of days; it is the ninth – “notify“.

Once a decision has been made – which is not the case – then the decision shall be notified: there will be a notification.

What is a notification?

It has been suggested (including by those who should know better) that there could be a notification by accident or by informal means – a situation of “whoops I made a notification“.  This could be by the mere presence of the Prime Minister at a council meeting, or by an admission of the referendum result, or even one imposed upon the UK by another Member State or organ of the European Union.

Much of this speculation is utter twaddle.

The thing about words in formal legal document is that they must mean something and cannot mean anything.  A “notification” – especially of something which would have fundamental and (it would seem) irreversible legal consequences – is not something to be taken lightly, but should be taken reverently and responsibly in the sight of any number of lawyers.

In particular, the notification would have to be (a) formal and (b) intended to be communicated: that is what “notify” means.  There has to be no doubt (or room for doubt) as to what the statement means and that it was intended to be communicated as such.

One would think this was obvious.  But this has not stopped the “all depends” mongers coming with ingenuous hot-takes on what “notification” means.

But in any case, a spokesperson for the European Union has now put it beyond doubt:

“The notification of Article 50 is a formal act and has to be done by the British government to the European Council,” the spokesman said. “It has to be done in an unequivocal manner with the explicit intent to trigger Article 50.”

Indeed.  There will be no “whoops we notified the Council”.

The spokesperson’s statement also expressly confirms what was the position all along: that the if and when of the Article 50 notification is entirely a matter for the UK government.

It is up to the UK whether to make the notification and, if so, the timing of it.  This in turn means that the notification may never be made.

There is nothing – nothing at all – which the EU can do at law to force the UK to make that notification.

It may be an irony, but this is what sovereignty looks like.

**

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Why the Article 50 notification is important

 

25th June 2016

 “Is there any other point to which you would wish to draw my attention?”

 “To the curious incident of the dog in the night-time.”

 “The dog did nothing in the night-time.”

 “That was the curious incident,” remarked Sherlock Holmes.

– The Adventure of Silver Blaze

*

On Thursday 23rd June 2016 there was a historic referendum vote. A clear and decisive majority – though not a large majority – voted for the United Kingdom to leave the European Union.

And the following day, Friday 24th June 2016, something perhaps just as significant did not happen.  The UK did not send to the EU the notification under Article 50 of the Lisbon Treaty on European Union which would have commenced the withdrawal process.

The Article 50 process is the only practical means by which the UK can leave the EU. There are other theoretical means – which would mean effectively the UK unilaterally renouncing its treaty obligations – but as the UK wants to be taken seriously in future treaty making, such approaches would lose credibility.

And so unless and until the Article 50 process is commenced and completed, the UK will stay as a member of the EU.

In short: no Article 50, no Brexit.

It is worth taking a moment to read Article 50, as the detail of its provisions will shape what (if anything) happens next:

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.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

You will see from Article 50(1) that it is for the Member State to make the notification.  Nobody else can: not the European Parliament, not the European Council or its President, not the European Commission, and not any other Member States.

So unless the Article 50(1) notification is made by a Member State, the provisions of Article 50 do not get triggered to begin with.

And it is entirely a matter for the Member State to choose whether to make the notification and, if so, when.

There is an interesting question as to what “its own constitutional requirements” means in the case of the UK, which does not have a codified constitution: it is the sort of thing about which a thousand constitutional law essays could be written, and no doubt will be.

In my view, it could mean the Prime Minister simply making the notification as an exercise of the prerogative, following the referendum result.  Or it could mean a prior parliamentary vote.  But in either case, it is a matter for the UK.

If it is a notification which can be made by a Prime Minister once the referendum vote result was known, then it was a notification which could have been sent yesterday.

That such a speedy notification would be made was certainly the impression David Cameron sought to give when the referendum was announced back in February:

Then there is the legality. I want to spell out this point very carefully. If the British people vote to leave there is only one way to bring that about – and that is to trigger Article 50 of the Treaties and begin the process of exit.

And the British people would rightly expect that to start straight away.

Let me be absolutely clear how this works. It triggers a 2-year time period to negotiate the arrangements for exit.

At the end of this period, if no agreement is in place then exit is automatic unless every 1 of the 27 other EU member states agrees to a delay.

If you read this carefully, you will spot that it is quite deftly worded: Cameron was not committing himself to making the notification.  It was instead something which would be “rightly expected”.  He did not promise to meet that “expectation”.

But in his (resignation) statement yesterday, Cameron said something different about Article 50:

A negotiation with the European Union will need to begin under a new Prime Minister, and I think it is right that this new Prime Minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.

So Cameron has gone from it being “rightly” expected that the notification be made by him straight away, to it being “right” that the decision be made later by somebody else at the time of their choosing.

The fact is that the longer the Article 50 notification is put off, the greater the chance it will never be made at all.  This is because the longer the delay, the more likely it will be that events will intervene or excuses will be contrived.

There will be those who will say: of course, the notification under Article 50 cannot take place straight away – don’t you realise it is part of a process? The UK should negotiate as much as possible before the notification is made and the two year deadline is triggered.

They may have a point, but pretty soon they will perhaps become self-conscious of explaining away why the notification has not been made quite just yet.  It may dawn on such people that the notification may never be made at all.

And so long as the Article 50 notification is not made, the UK continues to be a full member of the EU as it was before the referendum took place; indeed, as if the referendum never took place at all.

The Article 50 notification also has another side to it: unless and until it is made, there is no obligation on the European Union to negotiate with a Member State about to leave.

As I set out yesterday at the Financial Times, this means there is a stand-off:

Nothing can force the UK to press the notification button, and nothing can force the EU to negotiate until it is pressed. It is entirely a matter for a Member State to decide whether to make the notification and, if so, when. In turn, there is no obligation on the EU to enter into negotiations until the notification is made. There is therefore a stalemate. If this were game of chess, a draw would now be offered.

Stalemates can last a long time.  And unless there is political will to resolve it, this stalemate will not resolve itself.

There is no indication that UK politicians – including those like Boris Johnson and Michael Gove who are possible successors to Cameron – are in any hurry to make the Article 50 notification.

It is not impossible to imagine that the Article 50 notification will never be made, and that the possibility that it may one day be made will become another routine feature of UK politics – a sort of embedded threat which comes and goes out of focus.  The notification will be made one day, politicians and pundits will say, but not yet.

And whilst it is not made, then other ways of solving the problem created by the referendum result may present themselves: another referendum, perhaps, so that UK voters can give the “correct” result, or a general election where EU membership is a manifesto issue, or some other thing.

This will not please Leave campaigners, and rightly so. It means the result of the referendum will be effectively ignored.  But that was always possible, as it was set up deliberately as a non-binding referendum (unlike the Alternative Vote referendum, which was designed to have binding effect if there was a “yes” vote, which there wasn’t).

“Of course, they will respect the popular vote. They would dare not ignore it!” is the cry.

People saying this have a good point, but they should also remember a ship which never did get called Boaty McBoatface.

*

In my view, if the Article 50 notification was not sent yesterday – the very day after the Leave result – there is a strong chance it will never be sent.

If this view is wrong, it remains the case that those with a sincere interest in the issue of UK’s membership – whether Remainers or Leavers – should keep their eyes on the Article 50 notification, regardless of noise and bluster and excuses.

As long as the notification is not sent, the UK remains part of the EU.

And there is currently no reason or evidence to believe that, regardless of the referendum result, the notification will be sent at all.

*

ESTRAGON: Well, shall we Leave?

VLADIMIR: Yes, let’s Leave.

(They do not send the Article 50 Notification.)

**

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