First published July 6, 2017 www.DavidWolchover.co.uk
False Mantra of the “People’s Will”
The Case of the Missing Mandate
David Wolchover explains the legal rationale of lawsuits currently under way to obtain a declaration that the Prime Minister had no lawful mandate to serve an Article 50 notice on March 29, 2017, stating that Britain intended to leave the EU, and he addresses legal and constitutional issues arising out of the 2016 EU Referendum
(Amended on July 10, 11, 19, 20, 22, 23, 24, 27, 29 and 31 July; 11 and 14 August; 7, 11, 21 and 24 September; 13 October; 12, 13 & 20 November; 31 December, 2017; 4 & 22 January, 4 & 5 February, 9 June, 2018.)
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First published July 6, 2017 www.DavidWolchover.co.uk
I
T IS COMMONLY assumed that Prime Minister Theresa May’s letter of March 29, 2017, to European Council President Donald Tusk “triggered” Article 50 of the 2009 Treaty on European Union (the “Lisbon Treaty”). Although the letter professed to give notice of the UK’s intention to leave the EU, a growing number of people have come to the realisation that it did no such thing, that it had no legal effect, that it completely failed in its declared purpose of activating Article 50 and that, as I wrote in Counsel Magazine Online, “the letter was a faux trigger, a chimera, an illusion, not the real thing” (“Article 50: the trigger that never was?” June 2, 2017; an online poll of readers consistently registered around 80% in agreement). That original article was supplemented with four further pieces in addition to various editions of the present treatise (see Wolchover, D., “Non-Mandated Brexit: Are the Responsible Cabinet Members Criminally Liable?” (2017) 181 Criminal Law and Justice Weekly, July 15, pp. 490-495; “Criminal implications of Non-Mandated Brexit: A Postscript,” (2017) 181 Criminal Law and Justice Weekly, July 22, 2017; “The Case of the Missing Mandate,” New Law Journal, online September 8, 2017; “Could Brexit still be halted as Wednesbury Unreasonable?” New Law Journal, online January 15,, 2018).
The reason why it may be contended that we have landed up in this extraordinary predicament focuses on one simple and undeniable fact. The UK has not hitherto evinced any statutorily identifiable commitment to leaving the EU and has certainly not made any formal, legally recognisable decision to do so.
As constituted by the terms of the European Union Referendum Act 2015 (EURA) the EU Referendum 2016 was fundamentally precluded from registering a conclusive, collective, legally binding intention on the part of the UK to leave. In law it was merely “advisory” or “consultative,” enjoying no validity beyond that of a mere opinion poll. In short, there was no statutory basis on which a leave vote was capable in law of standing as a withdrawal commitment, whether the vote was 51% or even 99%. The Referendum result of June 23, 2016 – in which 51.9% of the ballot (but only 37% of the registered electorate) voted to leave – could not and did not count as a withdrawal decision, which is to say a binding declaration of intent on the part of the British people. The decision to leave the EU was one which could only be made or sanctioned by an Act of Parliament and Parliament has never passed an Act declaring or delegating such a decision. As I further commented in Counsel Magazine Online, this could be the greatest elephant in the room – or the Emperor’s New Clothes – of all time.
With the formal opening of the BREXIT negotiations on Monday, June 19, 2017, the question whether there has been a constitutionally settled decision to withdraw from the EU is now central to the question whether Her Majesty’s Government have any lawful mandate to conduct the negotiations. This is key to the whole exercise because the EU Commission only agreed to a negotiation process on the assumption (based on what they were formally told) that the UK had made a leave decision. Understandably there was never any question that they would provisionally negotiate in advance of an Art 50 decision and notification.
Actionable cause for Judicial Review
The UK government’s ultimate objective in embarking on the process is a treaty of withdrawal under Article 54 of the 1969 Vienna Convention on the Law of Treaties (with diverse other associated treaties). If I am right and there has been no decision to withdraw, that is to say no identifiable expression of intent to do so, validated or otherwise delegated by Parliament, it follows that the government enjoys no legal mandate to conduct negotiations towards a withdrawal treaty. However, this does not necessarily mean that the talks are ultra vires under UK domestic law. The government can talk to whomever they like but without a mandate to discuss the terms of withdrawal the talks arguably constitute a continuing non-event. On the other hand, to purport to engage the EU in “negotiations” which can result in no legal objective and for that reason constitute an unconscionable waste of time and public resources would arguably be tantamount to an unlawful abuse of power.
Legal actions launched
At the end of October, 2017, a crowd funding campaign was launched on the Crowd Justice website to fund a judicial review challenge to the validity of the Article 50 notification of March 29 (Article 50 Challenge, https://www.crowdjustice. com/case/a50-chall-her-e50/). The action has now been brought in the name of Elizabeth Webster, a Liberal democrat candidate in the 2017 General Election, and is supported by a full legal team led by Hugh Mercer QC (R. (on the application of Ms Elizabeth Webster v Secretary of State for Exiting The European Union, High Court of Justice, Administrative Court, CO/5929/2017) In the days which followed donations accumulated rapidly and proceedings were filed on Friday, December 22, 2017 (see Chloe Farand, “British Government facing High Court challenge to cancel Article 50,” The Independent, December 21, 2017, http://www. Independent.co.uk/news/uk/politics/brexit-latest-article-50-high-court-challenge-government-a8123 626.html#commentsDiv). The action joined two existing claims, one of them brought by a retired general medical practitioner, Andrew Watt (https://killbrexitnow.Blogspot.com.es/2017/11/ brexit-legal-challenge-prime-minister.html), the other by an anonymous claimant. On January 18, 2018, Walker J. refused consent for Dr Watt to proceed and on January 31 Phillip Mott QC, sitting as a Deputy High Court judge, similarly refused consent in the case of the anonymous claimant. An application by Webster to proceed on her claims is to be heard in the High Court on Tuesday, June 12, 2018. The government are resisting the claim, inter alia on the basis that it is out of time.
If permission is granted it is not yet clear how long it will take before the substantive issue can be heard and determined before the High Court. There will be some urgency to secure resolution of the issue in the Supreme Court prior to enactment of the government’s Withdrawal Bill, currently making its way through the legislative process. A judicial declaration that the March 29 letter failed to give the requisite Article 50 notice will certainly be highly newsworthy, to say the least. But it remains unclear how substantial an impediment this would be on the achievement of withdrawal. It does not follow that the government would need to return to Parliament humbled and crestfallen with a Bill correcting the inadequacy of the European Union (Notice of Withdrawal) Act 2017. If in the meantime the government have ironed out an acceptable agreement with the European Commission it may be asked whether if both the European and UK Parliaments vote to accept the terms the UK Parliament could simply incorporate in the Withdrawal Bill a provision retrospectively validating the March 29 letter as notification under Art 50. Indeed, it is arguable that that might not even be necessary.
In Webster the Claimant in her permission hearing skeleton argument (PHSK) concedes that it is not sought to nullify the negotiations hitherto and that if a declaration of invalidity is obtained it will be for the UK Government to decide how to deal with it (summary, para. 8):
“Any decision then made to withdraw from the EU in accordance with the UK’s constitutional requirements would extend the current timeframe for withdrawal, given the need to re-notify the European Council of the intention to withdraw under Art. 50(2), but it would not set at naught any progress made in the Brexit negotiations so far.”
Nonetheless, in the current climate of uncertainty and drift a declaration would be likely to give rise to very significant political consequences the outcome of which it is almost impossible to predict.
On October 31, 2017, it was reported that the UK government now recognises that its earlier insistence on Parliament being allowed only a vote to accept or reject the overall final deal is untenable and that any withdrawal treaty would need to be enshrined in law and be subject to Parliamentary scrutiny. Self-evidently this will inevitably raise the prospect of a lengthy and divisive showdown in Westminster with the possibility that Parliament might ultimately decide to abandon Brexit altogether. In the opinion of one commentator (Oliver Wright, “Brexit deal will only be legal after a vote of MPs,” The Times, October 31, 2017) the change of approach “would see off the prospect of a planned 11th-hour legal challenge to any Brexit deal on the grounds that it had not been explicitly authorised by MPs through an act of parliament.” That may well prove to be the case but for the moment it will have little impact on the pursuit of the current actions challenging the validity of the original Art 50 notice.
Article 50
To begin our examination of why Article 50 has not been invoked we shall set out its exact terms:
(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.
Declaration or description of principle in Article 50(1) Paragraph (1) declares or describes (as the case may be) the obvious principle that no Member State is permanently locked into membership. (I use the disjunctive verbs in recognition of the contention expressed by Kenneth Armstrong, University of Cambridge Professor of European Law, in challenging part of my thesis, that Art. 50(1) is descriptive rather than normative, identifying a right in EU law which exists under international law, and in particular under Vienna Article 54 to withdraw from a treaty: “Has Article 50 really Been Triggered?” UK Constitutional Law Association Blog, 14 June 2017.)
Rationale for the principle that a withdrawal decision must be in accordance with a member state’s constitutional requirements It is believed that the rule that a member state’s decision to withdraw from the EU must be made in accordance with its constitutional requirements was conceived in order to prevent the leader of a coup d’etat, for example, or a de facto dictator, from circumventing the particular state’s constitutional arrangements to abolish its membership. (For an illuminating excursus into the historical background of A50 see PHSA, paras 10 to 26.)
Prescriptive nature of Article 50(2) The prescript-ive nature of para (2) is not directed to precluding the absurd possibility of a secret withdrawal. Rather, it is an essential, first stage in the series of compulsory steps set out in sub-paragraphs (2) to (5) which must lead ultimately to withdrawal once a member state has decided to quit the Union, provided of course that that decision is maintained and not revoked within the two years after notification.
Affirmation by the Supreme Court in Miller that a withdrawal decision must be proclaimed or delegated by an Act of Parliament In the wake of the Referendum the government controversially claimed that they were constitutionally empowered under the royal prerogative to determine Britain’s relationship with the EU and could activate – or “trigger” – Article 50 without Parliamentary sanction. A legal challenge against that assertion was successfully mounted by a number of concerned citizens including, pre-eminently, Ms Gina Miller. In the government’s appeal to the Supreme Court (SC), R. (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC5, https:// www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf, the SC upheld the key principle that where the fundamental rights of citizens were at stake the phrase “in accordance with its own constitutional requirements” in Art. 50(1) meant by Act of Parliament. Parliament could have chosen in EURA to make the Referendum result legally binding without further reference back to Parliament. However, Parliament chose not to go down that path and, as already mentioned, EURA specifically and intentionally made provision for a Referendum to test the water, not to designate the result as a binding withdrawal decision. Miller confirmed that activation of the Article 50 procedures necessitated a decision – that is to say, a formal and binding manifestation of an intention to withdraw – validated by statute. In referring to their “conclusion that a statute is required to authorise the decision to withdraw from the European Union, and therefore the giving of Notice” (para 132) the SC meant that the decision could be taken by Parliament itself or delegated to the electorate or to the government. But Parliament was the ultimate fount of any decision to leave the EU.