davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web...

47
First published July 6, 2017 www.DavidWolchover.co.uk False Mantra of the “People’s Will” David Wolchover explains the legal rationale of the unsuccessful lawsuits which have sought 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 & 21 June, 2018.) N MARCH 29, 2017 Prime Minister Theresa May dispatched her famous letter to European Council President Donald Tusk professing to trigger Article 50 of the 2009 Treaty on European Union (the “Lisbon Treaty”). In her letter she stated O that she was giving notice of the UK’s intention to leave the EU but many people, chiefly “remainers” but a good number of “leavers” took the view that the letter had no legal effect, that it completely failed in its declared purpose of activating Article 50 and that, as 1

Transcript of davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web...

Page 1: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

False Mantra of the “People’s Will”David Wolchover explains the legal rationale of the unsuccessful lawsuits which have sought 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 & 21 June, 2018.)

N MARCH 29, 2017 Prime Minister Theresa May dispatched her famous letter to European Council President Donald Tusk

professing to trigger Article 50 of the 2009 Treaty on European Union (the “Lisbon Treaty”). In her letter she stated that she was giving notice of the UK’s intention to leave the EU but many people, chiefly “remainers” but a good number of “leavers” took the view that the letter 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.”1

O

The essential argument was that the UK had not made any statutorily identifiable decision to leave the EU.

1 “Article 50: the trigger that never was?” June 2, 2017; an online poll of readers consistently registered around 80% in agreement. The article was supplemented with four further pieces in addition to successive editions of the present treatise: “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

Constitutionally, the result of the European Referendum held on 23 June 2016 did not serve as such a decision. The terms of the European Union Referendum Act 2015 (EURA) fundamentally precluded the Referendum 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 it was argued that Parliament had never passed an Act declaring or delegating such a decision.

With the formal opening of the BREXIT negotiations on Monday, June 19, 2017, the question whether there had been a constitutionally settled decision to withdraw from the EU was central

1

Page 2: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

to the question whether Her Majesty’s Government enjoyed any lawful mandate to conduct the negotiations. This was 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 ReviewThe UK government’s 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 it were correct that no decision to withdraw had been made under Article 50, that is to say one validated by Parliament itself or otherwise delegated by Parliament to the government, it followed that the government would have enjoyed no legal mandate to conduct negotiations towards a withdrawal treaty. However, this would not necessarily have meant that the talks were ultra vires under UK domestic law. The government may talk to whomever it likes but without a mandate to discuss the terms of withdrawal the talks would arguably have constituted a continuing non-event. On the other hand, to purport to engage the EU in “negotiations” which could have resulted in no legal objective and for that reason constituted an unconscionable waste of time and public resources, as well as fundamentally misleading the general public and the populations of the EU, might arguably have been tantamount to an unlawful abuse of power.

Legal actions launchedAt 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 supposed Article 50 notification.2 The action was then brought in the name of Elizabeth Webster, a Liberal democrat candidate in the 2017 General Election, and was supported by a full legal team led by Hugh Mercer QC.3 In the days which

2 Article 50 Challenge, https://www.crowdjustice. com/case/a50-chall-her-e50/).3 R. (on the application of Ms Elizabeth Webster) v Secretary of State for Exiting The European Union, High Court of Justice,

followed substantial funds from numerous small donors accumulated rapidly and proceedings were filed on Friday, December 22, 2017.4 The action joined two existing claims, one of them brought by a retired general medical practitioner, Andrew Watt,5

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. Finally, an application by Webster to be permitted to proceed on her claims was heard in the Divisional Court on Tuesday, June 12, 2018, and was similarly rejected.6

In Webster the Claimant in her permission hearing skeleton argument (PHSK) conceded that it was not sought to nullify the negotiations hitherto and that if a declaration of invalidity were obtained it would be for the UK Government to decide how to deal with it:

“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.”7

Nonetheless, had the claim ultimately succeeded, in the current climate of uncertainty and drift a declaration would have been likely to give rise to very significant political consequences the outcome of which it would have been almost impossible to predict.

Article 50The exact terms of Article 50 are as follows:

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

Administrative Court, CO/5929/2017.4 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.5 https://killbrexitnow.Blogspot.com.es/2017/11/ brexit-legal-challenge-prime-minister.html6 [2018] EWCA 1543 (Admin), Cor: Gross LJ and Green J.7 Summary, para. 8.

2

Page 3: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

(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.8

8 The disjunctive verbs are used 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.9

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,10

the key principle was upheld 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, it 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

9 For an illuminating excursus into the historical background of A50 see PHSA, paras 10 to 26.10 R. (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5, https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf.

3

Page 4: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

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”11 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.

The European Referendum 2016: a gauge of public opinion In its essential advisory or consultative character the 2016 Referendum followed both the 1975 referendum on whether the UK should remain in the European Economic Community and the Scottish independence vote in 2014. An advisory or consultative referendum is one in which a positive preference expressed by a simple or indeed overwhelming majority does not bind Parliament to adopt the evinced preference. Rather, in the nature of any consultation in which soundings are taken of diverse opinions it requires the legislature merely to take it into account among a range of factors in determining the balance of advantage with a view to adopting a given course of action, in this case that of remaining in or leaving the EU. To exemplify the point the SC drew upon the example of the 2011 referendum on the question whether the alternative voting system should be adopted in Parliamentary elections. In making provision for that referendum Parliament explicitly pronounced that a simple majority vote in favour of the proposition would automatically bring the proposed change in constitutional law into effect without any requirement for subsequent statutory ratification.12

As the European Referendum was instituted to be a consultation – a test of public opinion – with a view to Parliament considering all known factors before making a decision, it would arguably follow that the Referendum was implicitly intended to be the precursor to a Parliamentary leave or remain debate in any event. Thus, even if the vote had been 99 per cent to leave Parliament would not have been legally bound to adopt the preference. Again, if the

11 Para 132.12 Parliamentary Voting System and Constituencies Act 2011, s.8; Miller, para 118.

majority vote had been to remain, Parliament, having by implication committed itself to debate the issue, could in theory at any rate, nonetheless have decided that the balance of advantage lay in leaving.

The paradox of unworkabilityUnfortunately the viability of the 2016 Referendum was inherently vitiated by what might be called a paradox of unworkability, its very own “Catch 22.”13

In the nature of a consultation the post Referendum process would oblige Parliament to embark upon a comprehensive and pragmatic determination of the balance of advantage for the UK in leaving the EU. Yet even a Royal Commission appointed to put the full range of relevant factors and issues under the microscope, could never second-guess the outcome of negotiations and the EU would not countenance negotiations before the European Council had been formally notified of the intention to leave under Article 50(2).

The Catch 22 is that there can be no comprehensive determination of the balance of advantage without negotiating for a deal and there can be no negotiation for a deal without making the decision to leave.

The advisory nature of the referendum therefore created a trap from which there was only one possible escape. For that reason it might have been preferable – certainly it would have been more manageable – to make the Referendum result binding on condition that a positive leave vote reached a prescribed threshold “super-majority,” say of sixty-six per cent – the classic threshold used in special company law or United Nations resolutions – to reflect the fact that a clear (rather than a bare majority) favoured changing the status quo. In a letter hand-delivered to every MP shortly after the Referendum Professor A. C. (Anthony) Grayling pointed out that––

“. . . in most jurisdictions major constitutional change requires a supermajority or two-thirds majority to effect them (as e.g. in the USA and Germany), whether in a legislature or in referendums. In Switzerland, which alone among developed nations employs frequent referendums in its ‘semi-direct’ democracy,

13After the late Joseph Heller’s 1961 novel of that name.

4

Page 5: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

major decisions require a double majority of the electorate and the cantons.”14

It is significant that the House of Commons may vote to dissolve itself in order to permit a General Election before the expiry of the normal fixed term of five years since the last such election but only with the support of at least two thirds of members, including vacant seats.15

Had the possibility of making the Referendum decisive been considered during the passage of the Bill which became the EU Referendum Act 2015 Parliament could have debated a suitable threshold.16 It might also have considered the question whether that threshold should be a proportion of the whole of the registered electorate (that is to say including de facto abstensions) or merely of the votes cast.

Although more manageable the problem with a binding leave vote is that, as Richard Bird of Action for Europe has pointed out,17 if presented as the ballot option “leave the EU” it is so simplistic as to be virtually meaningless.

The only logical means of escape from the paradox would be a second referendum, in which the public could express a meaningful view on the outcome of the negotiation.

Skewing the outcome: denying expatriates the vote18

British subjects resident outside the UK were formerly precluded from registering to vote in UK Parliamentary elections but in 1985 were permitted to vote for up to 5 years after taking up residence abroad. That period was extended to 20 years in 1989 but then reduced to 15 years in 2002.19 In 2015 the Conservative Party manifesto included a commitment to give the vote for life to all UK 14 Cited by Jon Danzig, “The EU Referendum was divisive, not decisive,” Reason2Remain, https://www.face book.com/ Reasons2Remain/posts/4668535636 74018, 28 July 2017; see also see also HC Briefing Paper on the European Union referendum Bill, No. 07212, June 2, 2015, passim.15 Fixed Term Parliament Act 2011, s.2, point noted by Jon Danzig, cited in n.13 above.16 See Richard Bird, “Why the UK needs another EU debate and vote,” November 1, 2016, and “How the EU Referendum was hijacked,” June 12, 2017, Huffington Post blogs).17 Ibid, to name but one commentator among a number.18 This section was corrected on 21 September 2017.19 See Neil Johnson and Isobel White, Overseas voters, HC Briefing Paper 5923, 23 March 2017, pp.9-10)

citizens resident abroad,20 which would have extended the franchise to an estimated 2.5 million adults. It was an undertaking the Conservative victors of the 2015 Election failed to meet, ostensibly citing insufficient parliamentary time.21

The vast majority of those in this bracket who resided in the EU would have been likely to opt for remain, which may in part at least explain why the comparatively straightforward legislative measure required was not implemented.

In late 2016 Prime Minister Theresa May reiterated the enfranchisement pledge, an undertaking which may be regarded as an open admission that the 2016 Referendum had of itself given a decisively false reading of the will of the British people.22

Challenge before the CJEU On 2 June 2018 it was reported that the Court of Justice of the European Union (CJEU) had agreed to hear an action brought by the French lawyer Julian Fouchet on behalf of 13 UK citizens (including 96-year-old World War II veteran Harry Shindler, a resident of Italy) who are claiming that the EU Referendum was illegal in having improperly excluded them from the franchise under the 15 year rule. It is predicted that if upheld the action would result in the annulment of the withdrawal negotiations and a fresh Referendum in which the hitherto expatriate citizens would be given the right to vote. The hearing has been set down for 5 July, 2018, with the court being enlarged to five judges. According to Fouchet the judges of the General Court are keenly interested in the case, otherwise they would have summarily rejected it.23

Conflicting ministerial statements on the aim of the ReferendumThe Conservative government’s approach to the purpose of the Referendum has been characterised by vacillation and confusion. In their 2015 Manifesto 20 Ibid, p.6.21 See https://www.theguardian.com/law/2016/ mar/15/british-expat-court-exclusion-eu-referendum.22 https://www.gov.uk/government/ news/governmentdelivers-on-pledge-to-give-back-british-expats-the-right-to-vote).23 See eg Oliver Roland, “Eu Court to hear case that could call off Brexit,” The Connexion, 2 June 2018, https://www.connexion france.com/French-news/ Brexit/French-lawyer-presents-Brexit-case-to-EU-court?utm_campaign=shareaholic&utm_medium= facebook& utm_source=socialnetwork. For further consideration of the implications of the action succeeding see below p.26.

5

Page 6: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

the Conservative Party stated on page 1 that they would “respect the outcome” of the promised Referendum,24 an elastic phrase which could either have meant no more than that it would be seriously considered by the government in formulating proposed legislation for Parliament or that it would be slavishly followed. That the result would, however, be implemented as the UK’s decision seems to be the sense of the commitment made on page 2 to “honour” the result.

In the event, the language of the Bill which became EURA itself provided little guidance on the outcome. Section 1(1) merely provided: “A refer-endum is to be held on whether the United Kingdom should remain a member of the European Union.” Subsection (4) stated: “The question that is to appear on the ballot papers is — ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ Subsection (5) provided that the alternative answers were to appear on the ballot papers were— “Remain a member of the European Union” and “Leave the European Union.” Nothing was stipulated as to the outcome.

However, a key avowal of its purpose was declared when the Bill came before Parliament. The House of Commons Briefing Paper on the Bill unequivocally set out the essentially advisory purpose of the projected Referendum in the following key passage:

“This Bill requires a referendum on the question of the UK’s continued membership of the European Union. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set any time limit by which a vote to leave the EU should be implemented Instead, this is a type of referendum known as pre-legislative or consultative which enables the electorate to voice an opinion which then influences the Government in its policy decisions.”25

This explanation was entirely on all fours with the statement by Minister for Europe David Lidington when he presented the Bill to the House of Commons:

24 Thanks are due to Sandra Dunn for drawing attention to this.25 HC No. 07212, 2 June 2015, p.25.

“The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year. In neither of those cases was there a threshold for the interpretation of the result.”

In spite of this clear exposition of policy, some ministers took a contrary position, whether through poor briefing or deliberate obtuseness remains unclear. As the SC noted in Miller,26 although the 1975 referendum on whether the UK should stay in the European Economic Community was very similar to the 2016 Referendum the way in which the two procedures were characterised by ministers differed. Whereas the 1975 referendum was described by Ministers at the time as advisory, the 2016 referendum was described as advisory by some ministers but decisive by others.

Indeed, not only were certain ministers in conflict with each other but there was even evidence of self-contradiction at the highest level. Opening the Second Reading Commons debate on the Bill on June 9, 2015, Foreign Secretary Phillip Hammond stated that the bill had “one clear purpose: to deliver on our promise to give the British people the final say on our EU membership.”27 Yet perhaps no more than minutes later he said that “the Referendum is about delivering a pledge to the British people to consult them about the future of their country,28 before asserting once again that “the decision must be for the common sense of the British people.”29

If there had been any doubts or ambiguity about the government’s approach to the Referendum result they were dispelled by Prime Minister David Cameron on January 5, 2016, when he announced to the Commons:

“Ultimately, it will be for the British people to decide this country’s future by voting in or out of a reformed European Union in the referendum that only we promised and that only a Conservative-majority government was able to deliver.”30

26 Para. 119.27 HC deb., col. 1047; https:// publications.parliament.uk/ pa/cm201516/cmhansrd/cm150609/debtext/150609-0004.htm.28 Col. 1053.29 Col. 1056.

6

Page 7: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

First past the post With no threshold majority stipulated in EURA it appears to have been generally assumed in the wake of Cameron’s statement that a bare majority in favour of leaving would suffice to make the decision. Cameron doubtless recognised that the Eurosceptic wing of his party would resist a two-thirds threshold for quitting. The referendum vote would now constitute the decision, to be decided by a simple majority in a two-horse race with the government implementing a leave vote. As a not particularly satisfactory means of conducting Parliamentary elections “first past the post” was regarded by the general public in the Referendum of 2011 as preferably less complicated than the AV form of proportional representation. But whether it was suitable for such a complex and divisive issue as EU membership is debateable.

Guaranteeing finality It may be conjectured that Cameron assumed he could afford to offer the hope of victory to the leavers and thus bring finality to the issue within the Conservative party after the remain victory which he confidently anticipated.31

Escape from the unworkability paradox It also incidentally furnished Cameron with a convenient escape route from the trap of his own making, the paradox of unworkability, though whether he was aware of its escape potential is unknown.

Cameron may have been speaking with all the authority of his office but the decree had precisely no legal warrant. To change the Referendum from advisory to binding would have required repeal of the EURA and its replacement by a new Act. But a majority of Parliamentarians might well have insisted on a two-thirds threshold to change the status quo, which might well have provoked trouble for him from the Conservative Eurosceptics and an end to consensus.

Supreme Court’s rejection of the principle underlying Cameron’s statement That David Cameron’s statement had no legal significance was made very clear by the SC when they stressed that nothing material hung on statements by ministers that the Referendum result would be legally binding:32

30 https://www.theguardian. com/politics/2016/jan/05/eu-referendum-david-cameron-confirms-ministers-campaign-brexit.31 See Richard Bird, 12 June, 2017 article, cited above, n.16.32 Para 119.

“Whether or not they are clear and consistent, such public observations, wherever they are made, are not law; they are statements of political intention. Further, such statements are, at least normally, made by ministers on behalf of the UK government, not on behalf of Parliament.”

In his statement of January 5, 2016, the PM was addressing the Commons, not speaking on their behalf; he was on a “frolic of his own” (as lawyers would say) in turning his back on the essentially advisory character of the Referendum as statutorily defined. He had no mandate for moving the goalposts and the advisory status of the slender majority outcome almost certainly stands to this day.

Resolution of the House of CommonsOn 7 December, 2016, six months after the Referendum and, as it happened, on the penultimate day of submissions before the Supreme Court in Miller, the House of Commons resolved, following a debate,

“[to recognise] . . . that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further [to call] on the Government to invoke article 50 by 31 March 2017.”

In Miller the SC noted that “the Secretary of State rightly accepted that the resolution [could not] affect the legal issues before this court. A resolution of the House of Commons is an important political act. No doubt, it makes it politically more likely that any necessary legislation enabling ministers to give Notice will be enacted. But if, as we have concluded, ministers cannot give Notice by the exercise of prerogative powers, only legislation which is embodied in a statute will do. A resolution of the House of Commons is not legislation.”33

In other words, while both the Referendum outcome and the Resolution were significant political episodes neither provided a legal basis for invoking Article 50.

33 Para 123.

7

Page 8: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

Attempt in Miller to challenge the advisory nature of the ReferendumIn Miller a forlorn attempt to challenge the advisory nature of the referendum was made on behalf of the Secretary of State for Exiting the EU. It was argued that, having referred the leave/remain question to the electorate, Parliament could not have intended that on the vote being to leave, the same question would be referred back to it.34 The submission betrayed a fundamental failure to acknowledge the inherent purpose of the referendum, which was not to pass responsibility for the decision to the electorate but to sample its opinion. The contention was denounced by the SC as classic petitio principii, the court pointing out that the argument assumed what it sought to prove, namely that the referendum was intended by Parliament to have a legal effect as well as a political one.

The European Union (Notice of Withdrawal) Act 2017In Miller the SC held in effect that since the Referendum result was merely advisory it was up to Parliament to make or delegate the UK’s decision to leave the EU through a clearly expressed Act of Parliament which could be extremely brief:

“Where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation. . . . [T]he 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.”35

For example, it needed to say no more than: “The United Kingdom shall withdraw from the European Union,” although it could actually have been briefer still, as will be discussed later.

The ball was now in the government’s court but, in spite of the decision in Webster, it may even now be contended that the one thing which the

34 Para 120.35 Paras. 121 and 122.

European Union (Notification of Withdrawal) Bill did not do was either to seek to enshrine the Referendum result as a constitutional decision or to delegate the decision to the government. The Act’s only section provided:

(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.

Without referring explicitly to a “decision,” the Explanatory Notes to the Bill cited the result of the Referendum and in para 4 to the Prime Minister’s announcement on 2 October 2016 that the formal process of leaving the EU would commence before the end of March 2017.36 The implication could not have been clearer that the referendum result was going to be treated by the government as the factual event which would activate the formal process. On 24 January Brexit Secretary David Davis told the Commons that the Government was “determined to deliver on the decision taken by the people of the United Kingdom in the referendum granted to them by this House to leave the European Union. . . . It will now be up to this Parliament to respect the decision it entrusted to the people of the United Kingdom, a decision they took on June 23.” The Bill was supposedly the means by which Parliament was to express its “respect” for the “decision” but those who had read the judgment in Miller and had perhaps been expecting it to ratify the Referendum result as a decision of the British people must have felt a little confused when they heard the terms of Mr Davis’s introduction of the Bill to the Commons. Explaining that it was “merely a procedural measure” he said that it was not–

“. . . about whether the UK should leave the European Union or, indeed, about how it should do so; it is simply about Parliament empowering the Government to implement a decision already made – a point of no return already passed.”37

36 Para 3.37 https://hansard.parliament.uk/ Commons/2017-01-31/debates/C2852E15-21D 3-4F03-B8C3-

8

Page 9: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

In the Lords, the Lord Privy Seal, Baroness Evans of Bowes Park, similarly stated:

“This House passed an Act to deliver a referendum without placing conditions on the result. On 23 June 2016, the British people delivered their verdict. The Bill is not about revisiting that debate; rather it responds to the judgment of the Supreme Court that an Act of Parliament is required to authorise ministers to give notice of the decision of the UK to withdraw from the European Union.”38

These assurances to Parliament that the decision had already been made were simply restatements of David Cameron’s original bootstrapping exercise.

Having navigated his way through the legislative process the Brexit Secretary now felt fortified in making the same claim in ensuing White Papers. In The United Kingdom’s Exit from and New Partnership with the European Union he stated: “The people of the UK have voted to leave the EU and this Government will respect their wishes.”39 In his Foreword to the White Paper Legislating for the United Kingdom’s withdrawal from the European Union he stated “On 23 June 2016 the United Kingdom made the historic decision to leave the European Union.”40

In her March 29, 2017, notification letter to Donald Tusk the Prime Minister stated that she was “writing to give effect to the democratic decision of the people of the United Kingdom” to leave the EU, as evinced “on 23 June last year” and added that “the United Kingdom Parliament confirmed the result of the referendum” by passing the EU (NoW) Act. In Webster it is observed in the Claimants Permission Hearing Skeleton Argument (PHSA) that:–

“[t]his is especially significant, because the Notification Letter was the very instrument by which the UK purported to act under Article 50(2): when taking that step, the UK Government’s publicly declared position was

F7E05F2276B0/ EuropeanUnion (NotificationOfWithdrawal)Act#contribution-4E407196-E047-424D-8243-C533B5E3647F.)38 (https://hansard.parliament.uk/lords/2017-02-20/ debates/30224DBB-4C77-4D65-A591-699EB7F99981/ EuropeanUnion(NotificationOfWithdrawal)Bill).39 Cm 9417, HMG, February 2017, p.5.40 Cm 9446, DEEU, March 2017, p.7.

that it had the power to do so because the referendum result had satisfied the Article 50(1) precondition.”41

As the Webster Claimant notes, the SC in Miller did not adopt this analysis. Coupled with repeated utterances, in and outside Parliament, of the controversial, if not absurd, mantra that the most slender of majorities (51.9 per cent of the votes cast but a mere 37 per cent of the registered electorate, not counting the millions of disenfranchised expatriates) represented the “will of the people” Davis’s diverse pronouncements plainly flew in the face of the clearest possible enunciation by the SC of the principle that only Parliament could enact, or delegate, the withdrawal decision and that the Referendum result was merely advisory – a majority opinion of which Parliament could take cognisance in determining whether or not formally to enact a withdrawal decision.42

Mystery of the government’s legal adviceThe state of the government’s awareness of the legalities remains an abiding mystery. However, it is frankly very difficult to believe that even before the judgment was delivered by the SC in Miller they could have failed to appreciate that the majority vote could not stand as a decision, given the advisory nature of the Referendum, and that the imprimatur of an Act of Parliament was needed to convert the majority withdrawal preference into law. The judgment in Miller could have left them in little doubt.

That the Prime Minister seemed so secretively impervious to inquiry when faced by her own side with even the gentlest expression of concern about the possibility of trouble tells against the cabinet’s collective naïveté. In the Commons on March 14, 2017, the veteran Eurosceptic backbencher Sir William (“Bill”) Cash, Conservative member for Stone, asked the Prime Minister whether she had taken “urgent legal advice . . . to be sure we do not have any unforeseen further attempts to undo the

41 Para 41.42 For a detailed break-down of the voting figures, see https://www.Electoral commission.org.uk/find-information-by-subject/ elections-and-referendums/past-elections-and-refer endums/eu-referendum/electorate-and-count-information. For an informative comparison with the voting figures in the 1975 European Referendum, see Jon Danzig, “The EU Referendum was divisive, not decisive,” cited above, n.14.

9

Page 10: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

Bill in the courts,” to which Mrs May gave a dismissive, if not withering, riposte that the government took appropriate legal advice at every stage but, as she reminded Cash, they did not discuss it on the Floor of the House.43

It would certainly be illuminating to learn the nature and source of the advice the government did receive and whether they were ever given – and heeded – warnings about the need for an Act of Parliament to enshrine or delegate the withdrawal decision. Certainly the government’s legal team in Miller knew exactly what was required, as is abundantly clear from the following passage of the Secretary of State’s written submissions to the SC:

“The surprising consequence of the [Divisional Court] judgment is that, if the outcome of the referendum is to be implemented, Parliament must decide to confer a new legal power on the government to make that decision pursuant to Article 50(1) TEU and to give notification of that decision pursuant to Article 50(2) TEU. In other words, if the UK is to withdraw from the EU, Parliament must be asked to answer precisely the same question which was put by Parliament to the electorate and has been answered in the referendum, and must give the same answer in legislative form.”44

Government misconstruction of Miller: inadvertent or deliberate?The key message to the government from Miller was that to obtain a mandate to invoke Article 50 they needed to ask Parliament either to make an express, unequivocal decision to withdraw or otherwise to delegate the decision to the government. However, there was an evident lack of clarity over the terms used by the SC to steer the government in the direction of what exactly was required to be enacted, with the court appearing to lay stress on the authorising of notification under Article 50. This incomplete reflection of the thrust of the judgment was then either collectively misunderstood by the government or otherwise exploited to circumvent the obligation imposed by Miller to enact the decision or to delegate it.43 https:// hansard.parliament.uk/commons/2017-03-14/deb ates/B5826F13-CE59-42DD-9DE4-ACDEA7E308DA/ EuropeanCouncil.44 Para 14d.

The government’s position in Webster was encapsulated in their Summary Grounds of Resistance (SGR), filed in response to the claim, in which they professed to maintain that in Miller the SC–

“considered what was required in order for notification lawfully to be given. It held that notification could lawfully be given by Ministers if Parliament provided prior authorisation for it. That is what happened. The notification complied with the Supreme Court’s judgment.”45

The inception of what either became a misunderstanding or led to an opportunist obfuscation, lies in the terms in which the Miller claimants (Miller and Dos Santos) appear to have couched their case: that the government needed Parliamentary approval if they were to give valid notice under A50(2). However, it seems improbable in the extreme that the claimants were intending that the issue should focus exclusively on A50(2) notification. Taking their cue from the claimants the SC adopted the reference to A50(2) notification seemingly as a convenient shorthand for the delegation of an A50(1) decision to be followed by notification under A50(2).

This may be deduced from a careful scrutiny of the judgment. The SC were insistent that a decision to withdraw from the EU could not be made by ministers under their prerogative powers unless exercise of the power so to decide was bestowed by Act of Parliament.

Thus, for example, they referred to the Divisional Court’s conclusion “that, because ministers cannot claim prerogative powers to take an action which would result in a change in domestic law, it was not open to ministers to withdraw from the EU Treaties, and therefore to serve Notice, without authorisation in a statute.”46 This represented a clear statement that a withdrawal decision by Parliament or a ministerial decision delegated by Parliament would necessarily be followed by notification in virtue of A50(2).

Again, the SC could not “accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in

45 Para 29.46 Para 69.

10

Page 11: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

the only way that the UK constitution recognises, namely by Parliamentary legislation.”47 It is clear that they were referring to the provision for a withdrawal decision, as they were when they stated that “the Royal prerogative to make and unmake treaties, which operates wholly on the international plane, cannot be exercised in relation to the EU Treaties, at least in the absence of domestic sanction in appropriate statutory form.”48 Although the SC readily accepted “that ministerial activity in the EU lawmaking process is effected under the Royal prerogative . . . it d[id not follow from this that ministers should be entitled to exercise a prerogative power to leave the European Union.”49

The final reference of note is the statement that “[w]here, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation.”50 In the context of “change in the law of the land,” “implementation” of the Referendum result clearly meant statutorily enacted or authorised ratification of the outcome, not merely the process of giving notification. Significantly, Lord Reid in his dissenting judgment said that “[t]he cases before the court arise from disputes as to the “constitutional requirements” which govern a decision by the United Kingdom to withdraw from the European Union under article 50(1): a decision which must be taken before notification can be given under article 50(2).”51

In spite of these very clear statements declaring the need for legislation either making the withdrawal decision, or – as a permissible alternative to Parliament enacting the decision itself – authorising the government to make the decision, the judgment contains numerous references to the need for Parliamentary authority for ministerial notification under A50(2), with no associated express mention of the need for an A50(1) decision.52 It is worth setting out the passage in the last of these

47 Para 82.48 Para 86.49 Para 95.50 Para 121.51 Para 154.52 See, eg, paras 94, 95, 100, 101, 105, 111 and 115).

paragraphs53 since the government expressly relied on it in their Webster SGR:

“Given our conclusion that, in the light of the terms and effect of the 1972 Act, ministers cannot give Notice without prior sanction from the UK Parliament.”54

The potential confusion may have been aggravated by what may have been an error in para 107. There the court referred to the fact that leading counsel for the Secretary of State had pointed out that the detailed prerogative powers which Parliament intended to control in relation to the EU Treaties “did not include the power to withdraw from those treaties under article 50(2).”55 The right of Member States to decide to withdraw is of course supplied by A50(1).

Although the SC noted that the House of Commons Resolution of December 7, 2016, had called on Minister “to give Notice by 31 March 2017”56 the Resolution had in fact in terms called on the Government “to invoke Article 50” by that date. This may be further evidence of the court’s reference to notification as a convenient abbreviation for decision/notification.

It is not absolutely inconceivable that those lawyers who were directly responsible for advising the government simply gave poor advice. However it does seem unlikely that if the advisers included some who had been part of the Miller team they utterly failed to appreciate and assimilate the key essentials of the decision. Moreover, it would hardly have been “rocket science” for even the most junior lawyer in the government’s service to pick out the essence of the decision and that the Act needed to ratify the Referendum result or expressly delegate the decision to the government in order to validate notification under Article 50.

The high probability therefore is that government lawyers did tender accurate advice as to the wording of the legislation necessary to give effect to Miller and that the government were not so ill-prepared as to rush out a fundamentally defective bill. It is therefore difficult to escape the conclusion that the advice was either ignored or overruled by 53 Para 115.54 At para 30.55 Emphasis supplied56 Para 123: see p.7, above.

11

Page 12: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

certain politicians who thought that the decision was none of Parliament’s business. Raymond Shapiro has aptly characterised the process as follows:

“In a regrettable conflation of the substance of the ruling and the mechanics of notification, the hitherto clear and substantive message of the Supreme Court ruling is muddied by undue emphasis on the authorisation of notification under Article 50. The [Act] opportunistically leverages this ‘feature,’ conveniently ignoring the troublesome (to the government) substantive elements of the Supreme Court ruling that require an express, unequivocal decision of Parliament. To claim that the [EU] NoW Act fulfils the obligation for a constitutionally legitimate decision under Article 50(1) requires an exceedingly narrow and cherry-picked reading of the Supreme Court ruling. That the government would wilfully bypass the substantive points of the ruling and head straight for a loophole is shameful.”57

Hijacking by smoke and mirrors?It may therefore be very hard to believe that in the wake of Miller Theresa May and David Davis could have remained in blissful ignorance of the fact that David Cameron had not only enjoyed no statutory mandate to treat the Referendum result as decisive and binding but was explicitly precluded from doing so. The question which must be asked is whether they were suffering from collective blindness or there was method in their madness; whether it involved in effect hijacking – to adopt Richard Bird’s graphic but entirely apt term – the advisory nature of the referendum result by the use of sleight of hand or smoke and mirrors (or whatever metaphor of deception one cares to use) in order to bring about a momentous transformation of our constitution and our economy.

A surreal conjectureThe remote, almost surreal, possibility has been conjectured as to why the government might deliberately have omitted to make the decision

57 (letter to the Crown Prosecution Service dated 20 January 2018 https://www.stopbrexitmiscon duct.org.uk/assets/pdf/deliverables/20180120-wag_letter_to_cps.pdf).

binding.58 The imperative terms of Article 50(2), laying down an obligatory path to a withdrawal treaty, make it clear that once Article 50 has been invoked and notice of withdrawal given there can be no turning back. (This was common ground between the parties in Miller but the SC refrained from taking a position.59) Supposedly the EU would be unmoved by any second referendum which rejected the outcome of negotiations and Article 50 is therefore a one-way ticket. Once notice is served the Member State must and will leave. So if the EU offers the UK unacceptable terms it will be too late to relent and we shall have no option but to walk away from membership with nothing but World Trade Organisation Rules on which to rely. Wags might therefore ask whether the government’s true plan was to adopt a policy of insurance, to deploy sleight of hand in all this, intending later on to respond to the possibility of a bad deal by saying “We now find we never did invoke Article 50 so we’ll stay in the EU after all, thank you very much.” Doubtless the EU would be only too delighted and so would have an inherent interest in playing along with the charade – except that they would also have a motive in blocking a good exit deal for Britain in order to pressurise us into staying. The crypto Remainers win the day.60

Such an explanation of the government’s motivation may be far-fetched but this is not to preclude the possibility that it had also been in the minds of those who opposed the EU (Notification of Withdrawal) Bill such as Mr Kenneth Clarke, a politician and Queen’s Counsel upon whom there are few flies. It is difficult to believe that its deficiency escaped his attention but in his long speech in the Commons not once did he mention

58 “Article 50 the trigger that never was?” Counsel Magazine .59 See para 26; see below section “Are withdrawal decision and intention synonymous?”60 The same possibility had already occurred to Richard Bird in his November 1, 2016, blog, above, the present commentator had been unaware of the fact when the Counsel Magazine online article was published. It was also canvassed at para 34 of what has become known informally as the “Three Knights Opinion” by QCs Sir David Edward, Sir Francis Jacobs, Sir Jeremy Lever, Helen Mountfield and Gerry Facenna, commissioned by the People’s Challenge group and furnished to the House of Lords ahead of the second reading of the EU (Notification of Withdrawal) Bill 2017 (hereafter “Three Knights”). Ros Chappell has also expressed some interesting insights on the topic in a personal communication.

12

Page 13: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

it.61 The question which may be asked is whether he foresaw trouble ahead for Brexit in consequence, did not wish to assist the government and privately rejoiced in the prospect.

Identifying the true motives for circumventing ParliamentIf the circumvention of Parliament was deliberate there could conceivably be consequences beyond that merely in civil law. In order to determine if it was likely to have been deliberate (rather than inadvertent or slipshod) it will be necessary to try to identify what the motivation could have been, given that to make the decision legally binding the inclusion of the briefest of phrases would have sufficed.

There are two possible motives, both self-evident and simple.

1. Passing the buck. The first possible motive arises out of the conjecture that the government wanted to extract from the Referendum an illusory “pure” notion that the decision was the directly expressed will of the British people, rather than a decision arrived at through the filter of representative democracy. In short, the government – looking after the interests of the political class – could pass the buck to “the people” if Brexit proved to be calamitous for Britain.

2. Not trusting Parliament to make the decision Equally it may be conjectured that the government perceived they would be left as hostages to fortune if they asked Parliament to make the decision. They could be far from sure that there were not a sufficient number of “remainers” in the Commons and the Lords, unmoved by the mantra of the “people’s will,” who would relish the chance to sink the Brexit ship. A telling glimpse of this, the true motive behind the government’s strategy, is afforded by a brief comment from David Davis, speaking on 13 March, 2017, in the Common debate on Lords’ amendments to the Bill:

61 https://hansard.parliament.uk/Commons/2017-01-31/debates/C2852E15-21D3-4F03-B8C3-F7E05F2276 B0/EuropeanUnion(NotificationOfWithdrawal)Bill#contribution-E964E0BC-96A2-453F-901D-451528B53517.

“[W]hat we cannot have . . . is any suggestion that the votes in either House will overturn the result of the referendum. That is the key.”62

Davis’s statement incidentally provides certain proof that he acted quite deliberately in circumventing Parliament.

The drunken driver’s right of wayIt is the job of the Opposition to scrutinise and challenge government Bills. Yet, the curious supineness of Labour’s Brexit lead Sir Keir Starmer, an eminent Queen’s Counsel and former Director of Public Prosecutions, and his team, in the face of the Bill’s intrinsic failure to implement Miller by ratifying the Referendum result suggests a degree of deliberation in looking the other way. It may be asked why they never challenged the government’s absurd and utterly wrongheaded assertion that the Referendum result constituted the leave decision. On reflection their failure is perhaps worse than merely not picking up a legislative deficiency. While some may forgive the Opposition for living with the demands of realpolitic – going with the flow – others, with less charity, will judge that in an anxiety not to appear elitist and “undemocratic” they suffered a collapse of political will. Having joined the Eurosceptic wing of the Conservative Party in an unholy alliance of repeating the mantra of the will of the people, ignoring the law and breaking faith with millions of his fellow citizens it will doubtless be of particular interest to the Labour Party to be reminded that while 37 per cent of the registered electorate were allowed to dictate the leave decision for the whole country, current trade union law requires the consent of 40 per cent of registered members to sanction strike action.63

It may be asked whether Starmer forgot that on his appointment as DPP years before he had been fêted as one of the realm’s foremost experts in human rights law. Instead he seems to have stood

62 https://hansard.parliament.uk/Commons/2017-03-13/debates/7B70DCB0-A791-4B45-B01E-04D5689E8E62/ EuropeanUnion(NotificationOfWithdrawal)Bill, brought to the author’s attention by Roderick Dunnett, barrister and former associate director of the European Investment Bank legal service.63 This cogent point was made by Ceri Carlill in a personal communication.

13

Page 14: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

aside in the face of what Ethan Coen in his acclaimed poem called “the drunken driver’s right of way.”64

Envisaged arguments that Parliament implicitly made or delegated the leave decisionEffective notification under Article 50(2) could only be given if there had been a leave decision under Article 50(1): Miller.

Before the government revealed its defence to the A50 invalidity lawsuits it was anticipated that they would need to argue that if the 2017 Act (a) did not ratify the Referendum majority opinion as a decision or did not delegate to the government the power to make the decision it would have been without point or purpose. It would have been superfluous since, as head of the government, the Prime Minister was already invested with authority to give Article 50(2) notice of any decision to withdraw and Acts of Parliament are presumed to have a tangible purpose. There had to be more, the government would be compelled to contend. It was apprehended that the government would argue that implicit in the authority Parliament granted to the PM to give notice under Article 50(2) was one of two possibilities. They would have to contend either that it impliedly enacted the leave decision or that it impliedly delegated the making of the decision to the government, embodied in the Prime Minister.

It was envisaged that if the government sought to contend that Parliament had implicitly enacted the decision they would have to argue that the Act was to be read as follows, with the bracketed words in bold emphasis supplied:

“The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention [hereby affirmed] to withdraw from the European Union.”

The intention so affirmed would be the opinion expressed by 51.9 per cent of the votes cast in the Referendum. It was predicted that the government would argue that since the EU (Notice of Withdrawal) Act 2017 explicitly empowered the PM to give Article 50(2) notice forthwith (and not merely at such time in the future as a decision might be 64 The metaphor was inspired by Tim Ashton. For an insight into Starmer’s impercipience see Wolchover, D., “Fishing in France” (2010) Criminal Law and Justice Weekly, 174 JPN No 27, July 3, pp.405-408 and see letter and response, ibid, Sept 4, 2010.

made by an Act of Parliament) the Act also implicitly made the leave decision.

Alternatively, it was envisaged, the government might well seek to argue that the Act implicitly gave authority to the government, in the person of the Prime Minister, not simply to give notification but to make the decision.

Previous editions of this treatise examined in detail the potential arguments for and against implicit ratification by Parliament. However, it is unnecessary to include them in this edition because, ultimately it was conceded by the present commentator that the most viable approach which it was anticipated the Government would adopt would be to argue that the EU(NoW)Act 2017 implicitly authorised the Government to make the decision.

The implied delegation approachThe 2017 Act says nothing explicit about delegating to the Government the making of the A50(1) decision. Moreover David Davis told the Commons that the Bill which became the Act was not about making the decision but was merely procedural. However, his statement that the Bill empowered the government “to implement a decision already made” was a partial echo of his written submission to the Supreme Court, referred to earlier, that “if the outcome of the referendum is to be implemented, Parliament must decide to confer a new legal power on the government to make that decision pursuant to Article 50(1).”

That implied delegation might be the government’s approach in the Article 50 validity actions for judicial review was not pursued in pre-action protocol correspondence between the government and the second of the two original claimants, disclosed to this commentator. In their response the Government Legal Department noted:

“Contrary to what you have suggested in your letter, the [SC in Miller] did not hold that the effect of Article 50 was that ‘Parliament’ had to make a ‘decision’ to leave the EU before notification could be given. Rather, the Court held that the UK’s constitution meant that authorisation of the notice of the UK's intention to withdraw must be given in primary legislation passed in both Houses of Parliament and

14

Page 15: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

assented to by HM the Queen. The EU (NoW) Act 2017 satisfied that requirement.”65

It is quite true that Miller did not say that only Parliament could make the decision. Clearly it was open to Parliament to delegate the making of the decision to the government, just as it could have delegated it to the electorate via a binding referendum. But the key point to note is that bestowing authority merely to notify the UK’s intention achieves nothing unless Parliament simultaneously either declared the decision or declaration of intention itself or delegated it to a third party, notably the government. Such a decision is a sine qua non of valid notification. As far as its express terms went the 2017 Act did not convey this.

In their response to the Webster claim the Government contended that the A50(1) decision involved the following steps:

(1) The referendum result.(2) The House of Commons Motion on 7

December 2016.(3) The A50 process, requiring a withdrawal

decision and then notification(4) Passage of the EU (NoW) Act 2017(5) The Notification Letter of 29 March 2017.

In referring to these steps the claimant in Webster stated that it was difficult to see how–

“[b]undling them all together [can] somehow conjure that legal effect when it is absent from the component parts.”66

However, the key question is whether step 4 – enactment of the 2017 statute – could and did provide the authority for the government to make the decision. In spite of prompting from the court during the Webster Permission Hearing it remains unclear whether the government’s case ever evolved into claiming that the Act did furnish the necessary delegated authority. In any event the court made up the deficit. Since the Act did not appear to delegate the decision, at least in terms, the argument necessarily depended on whether it achieved delegation by implication. For valid notification to be given under Art 50(2) a decision is by definition required under Art 50(1), a decision which according to Miller may only be made or sanctioned by “The

65 Letter dated August 11, 2017, ref Z1712365/LJM/B6.66 PHSA, para 46.

Queen in Parliament.” It was incumbent on the government to contend that although referring only expressly to “Article 50(2)” the Act gave implicit authority to do that without which a communication to the European Council could not constitute valid notification under Art 50(2): the authority to make the decision.

Given that Art 50(2) notification is no more than an imperative formality occasioned by a substantive Art 50(1) decision, it fell to the government to submit that if the Act was to be invested with a purpose beyond giving the Prime Minister a power which she already enjoyed by virtue of her office it would necessarily and implicitly have granted her the substantive authority to make the Art 50(1) decision itself. As already mentioned it is unclear if the government ultimately advanced this in arguendo during the Permission Hearing.

Where a decision is made in valid pursuance of Art 50(1), notification to the EU is obligatory under A50(2). However, the Act notably employs the permissive “may” in contrast to the imperative language of Art 50(2). It was arguable that in giving the Prime Minister discretionary authority to notify a decision the Act was a clear pointer to the fact that it gave her authority to make the decision itself.

Inferential legislation: Parliament must “squarely confront” its objective To the proposition that the Act inferentially delegated the decision to the government the claimant in Webster had to argue that under established principles of constitutional law, it was not permissible for an administrative decision with legal effects on individuals to be made up of inferences.67 Where fundamental rights are at stake in any proposed legislation Parliament must make its objective crystal clear on the face of the statute in question. In R v Secretary of State for the Home Department, Ex p Simms68 Lord Hoffman said:

“[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. . . . Fundamental rights cannot be overridden by general . . . words [in a statute] because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.”

67 PHSA, para 47, and see ibid, section E)68 [2000] 2 AC 115, 131.

15

Page 16: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

The principle enunciated in this passage was reiterated in a number of later authorities (notably R. (Jackson) v Attorney General69). The passage itself was cited with approval by the SC in Miller.70

Authorities specifically banning implicit delegation from imprecise statutory languageSo far we have been considering general judicial strictures against inferring from imprecise or ambiguous statutory wording measures which override fundamental rights. However, the courts have also specifically deprecated the inferring of delegated powers from imprecise statutory language. Thus, in AXA General Insurance Ltd v HM Advocate Lord Reed JSC observed:71

“The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.”

Again, in R v Secretary of State for the Home Department, Ex p Pierson, Lord Browne-Wilkinson stated:72

“A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”

It followed, according to Lord Steyn,73 that—

“unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law.”

In Miller itself, it is plain from the following passage that in demanding clear and unambiguous language of intent and meaning the SC were referring specifically to the delegation to the government of a decision affecting the fundamental rights of citizens:74

69 [2005] UKHL 56.70 Paras. 56-57 and 83-87.71 [2012] 1 AC 868, at para [152].72 [1998] AC 539.73 Ibid, at p. 591.74Miller, at para 87.

“Had the Bill which became the 1972 Act spelled out that ministers would be free to withdraw the United Kingdom from the EU Treaties, the implications of what Parliament was being asked to endorse would have been clear, and the courts would have so decided. But we must take the legislation as it is, and we cannot accept that, in Part I of the 1972 Act, Parliament ‘squarely confront[ed] the notion that it was clothing ministers with the far-reaching and anomalous right to use a treaty-making power to remove an important source of domestic law and important domestic rights.’”

In short, where the rights of citizens are at stake there is no place for Delphic interpretation or conjecture in determining whether Parliament has delegated to the government powers which will have the effect of depriving citizens of those rights.

In order to make their case the government had little choice open to them but to contend that Parliament must have intended to delegate to the Prime Minister the power to make the Art 50(1) decision and that that was to be irresistibly inferred from the fact that the statute would otherwise have been wholly devoid of purpose. The Prime Minister already had authority to give Art 50(2) notification where there had been a decision and therefore a mere authority to notify would achieve nothing without a decision and would render the statute wholly otiose. The government’s case therefore depended on the presumption that Parliament does not wilfully enact statutes entirely lacking in any purpose.

To have left delegation in no doubt the Act need only have provided:

“The PM may invoke Article 50 of the Treaty on European Union.”

There seems no discernible reason why the draftsman eschewed such a simple formulation. David Davis’s claim on the floor of the House of Commons that the bill was not about making the withdrawal decision fundamentally contradicts the proposition that it gave authority to the government to make the decision. It is difficult to see what Bill could have been more “about” making a decision than delegating an authority to make it. In short, it was the submission of the present commentator

16

Page 17: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

that in the light of Davis’s pronouncement and the rules about precision of purpose any contention that the statute implicitly delegated the A50(1) decision was a bridge too far.

It is noteworthy that the arguments envisaged here in favour of implicit delegation were not expressly advanced by the government in their pleadings in Webster, in spite of the fact that in one of this commentator’s published articles and in previous editions of this treatise they were clearly canvassed.75 There is a reference during the post judgment submissions as to costs which suggests that it was Green J who, during the Webster permission hearing on Tuesday, 12 June 2018, took up the cudgels of delegation but it is not clear that Tom Cross, counsel for the government, ever latched on to it, whether belatedly or at all.

The decision in WebsterGiving judgment refusing the Claimant’s application for permission to proceed with the action Gross LJ stated:

“The change in the law with which Miller was concerned involved invoking Art 50 of the Treaty; in short, a decision to withdraw from the EU, accompanied by notification of doing so. The legislation was intended to give effect to Miller. Its authorisation to the Prime Minister to notify under Art. 50(2) plainly contemplated and encompassed the power to take the decision to withdraw and conferred that power expressly on the Prime Minister; there would indeed be no point in notifying under Art. 50(2) absent a decision to withdraw under Art. 50(1). . . .The Prime Minister’s letter [of March 29, 2017] itself contains a decision backed by the authority of the 2017 Act, that decision complies with the requirements of Miller. No additional UK constitutional requirements remained to be satisfied. I reject the argument that additional formality was required under the UK constitution or that there was any requirement for the Art. 50(1) decision to be in some separate document from the Art.50(2) notification.”76

75 “Could Brexit still be halted as Wednesbury Unreasonable?” citation above, at n.1.76 Judgment, cited supra, paras 13 and 14. Although the court was only sitting on a permission hearing it gave authority for the

To be absolutely clear, the court therefore held that the EU(NoW) Act 2017 delegated to the Prime Minister the authority to make the Art 50(1) decision. No doubt out of politeness Gross LJ said that the court did not “disparage the motivation” of the various claimants in bringing their challenges “given the importance of the rule of law.”77

However, he concurred with the government’s response that the claim was “Totally Without Merit,”78 and “unarguable,”79 adding that it was “hopeless,”80 and “doomed to fail on the merits.”81 It might be thought that these epithets of dismissal were perhaps rather too overemphatic, especially in view of the government’s failure to advance the case for delegation until the actual hearing and perhaps not even then.

Given the clear, unambiguous and very brief statutory wording which the government might sensibly have employed in putting the issue beyond any shadow of a doubt (as suggested earlier), given their resort to ambiguity for what may perhaps have been political purposes and given the “squarely confront” line of line of authorities calling for strict clarity, it might be thought that the Claimant’s case warranted a more measured recognition of the importance of the question whether delegation could be inferred from the language of the statute, than was reflected in the epithets “totally without merit” and “hopeless .

That Gross LJ described the 2017 Act as having expressly conferred on the Prime Minister the power to make the Art 50(1) decision rather begs the very question raised by the Claimant. While it might be accepted that the Act impliedly delegated the power the one thing it might be supposed that it did not do was confer the power expressly. In short the court’s whole approach might lead us to observe with Hamlet that “the lady doth protest too much, methinks.”

The official transcript of the judgment includes an illuminating record of submissions on costs and it is noteworthy that the court awarded only £1,500 against the government’s request for £4,000, an

judgment to be cited: para 25.77 Ibid, para 2.78 Ibid, paras 7, 10 and 25. The use of the phrase is pursuant to the Civil Procedure Rules, r.23.12(a): see ibid para 10. 79 Ibid, paras 7 and 16. 80 Ibid, paras 10 and 25.81 Ibid, para 16.

17

Page 18: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

order which perhaps serves as a perfectly adequate indication of what the court actually thought of the government’s whole approach and performance without having to be too uncharitable.

The Claimant has lodged an appeal but without wishing to offer a counsel of despair it may be difficult to envisage an appellate tribunal disagreeing with the opinion of a senior appellate judge expressed so robustly.

The delegated leave decision: “Wednesbury unreasonable”The decision “already made”When David Davis referred in the Commons to the decision “already made” he did not explicitly attribute it to the Referendum, although in the Lords Baroness Evans, for the government, did do so. Conceivably they may have been referring to a decision by the government either strictly and exclusively applying the Referendum outcome or taking it into account. Although Davis was clear that the Bill was not about making the decision this would not necessarily be incompatible with the contention that the purpose of the proposed Act was to give retrospective sanction to a decision “already made” by the Prime Minister.

Although the issue did not arise in Webster, had it done so the government’s best policy with regard to the vagueness and imprecision of the language used by the two ministers might well have been simply to ignore what they had said. The courts might well have been inclined to sympathise. If the claimants had sought to rely on Pepper v Hart82 to infer legislative intent from ministerial pronouncements quoted in Hansard they would need to show that the wording of the statute was ambiguous. The government could have forestalled this by demonstrating that the statute’s logical purpose was sufficiently manifest to rule out any inherent ambiguity in the wording. Indeed they might have been able to argue convincingly that, ironically enough, the statutory purport was much less ambiguous than the ministerial language.

Challenging the delegated decision as unlawfulAlthough the government were successful in pleading that the EU(NoW) Act gave the PM implied

82 [1992] 3 WLR 1032.

authority to make the A50(1) decision that might still have left open a door for challenging the lawfulness of the government’s decision itself (made through the statutory instrumentality of the Prime Minister). This would have been based on three matters pertinent to the Referendum.

Supposing the delegated withdrawal decision taken by the government was predicated on a considered analysis of the balance of advantage taking into account all known factors including the Referendum result. Such a decision would have been capable of being entirely rational, if speculative. It would be in keeping with the avowed consultative purpose of the Referendum. A statutory discretion to make a withdrawal decision might be perfectly rationally and properly exercised in spite of the fact those expressing a preference to leave the EU constituted a minority of the registered electorate. Whether the exercise of the discretion would have been politically wise is another matter.

If the government had asserted that they made the decision based on a consideration of multiple factors, it would presumably have become theoretically possible to invite a Divisional Court to adjudicate on the lawfulness of the decision by reference to those factors which the government took or failed to take into account in exercising its delegated discretion to determine whether or not to withdraw the UK from the EU. Suppose there was material before the court indicating that the government was aware of a preponderance of expert opinion pointing unequivocally towards a pronounced long-term negative impact on the British economy. Suppose the evidence showed clearly that the government had chosen to ignore the thrust of that opinion but had preferred instead to make the withdrawal decision on the basis of three factors: (a) a highly conjectural prognostic-cation of the world trading opportunities resulting from withdrawal; (b) the need to placate the Eurosceptic wing of the Conservative Party and the Democratic Unionist Party of Northern Ireland; and (c) the preference evinced in the Referendum by the minority of the registered electorate.

It is proposed to turn now to a consideration of the principal factors which, objectively considered, may have run counter to the legitimacy of withdrawal decision.

The “58 studies”

18

Page 19: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

In September 2016 David Davis told the Commons that there were sectoral analyses for “about 50 cross-cutting sectors” of the UK economy, predicting what would happen to them after Brexit. Initially little media attention seems to have been paid to his statement but during the second half of 2017 the media began to ask about the predictive studies, which were now being spoken of as amounting to 58 (although the figure of 57 was also mentioned). Rumours were circulating that collectively the studies demonstrated a preponderant negative impact. In October the crowd-funded “Good Law Project” threatened legal action to force release of the studies but in the face of continued government resistance based on a claim that full disclosure would weaken the UK’s negotiating position the House of Commons used a humble address on November 1 to order release of the 58 studies in full “unredacted” form.

The next day ministers provoked accusations of prevarication and a lack of transparency when they told the Commons that there would be some delay while the government considered how the material might be released to the Commons Select Committee on Exiting the EU without harming the UK position in the negotiations. They did not deny the existence of the 58 studies, but on November 7 Steve Baker, the junior Brexit minister, told the Commons that it was not actually the case that there were 58 sectoral impact assessments examining the quantitative impact of Brexit on those sectors. Explaining that the sectoral analysis was “a wide mix of qualitative and quantitative analysis contained in a range of documents developed at different times since the referendum” he stated that this meant “looking at 58 sectors to inform [the UK’s] negotiating positions.” He added that it would take the government some time to collate and bring together the information in a way that was accessible and informative to the committee.

In response Matthew Pennycook, Opposition Brexit spokesman, rejoined that if the impact assessment papers did not exist as billed, a clear impression had been allowed to develop over many months that they did and he castigated ministers for using “semantics and double-speak” to avoid the clear instruction of the House of Commons. The outspoken Conservative member Anna Soubry pointed out that in the debate a week earlier on the

humble address ministers had been talking about redaction without making any claim that the documents did not exist.

The delivering up of 850 pages of redacted material in two lever arch files to the Brexit Committee was seen as an inadequate response. Under the threat of contempt proceedings David Davis was duly summoned to appear before the Committee and caused consternation with the claim that the government had produced no economic forecasts as to the likely impact of Brexit on various sectors of the UK economy, that there had been no formal systematic impact assessment and that there was nothing extraordinary about this as there were a “phenomenal number of variables.” When reminded by Committee chair Hilary Benn of what he had said in September 2016 about the “sectoral analyses” in 50 sectors he cautioned – it may be thought somewhat obscurely – that use of the word impact did not mean that an impact assessment had been written. He added that there had been a “misunderstanding” and that the sectoral analyses which had begun in 2016 were “essentially looking at what the industries consist of, looking at the size of them in terms of revenue and capital and employment, and so on.” However, he said, it was “not a forecast of the outcome of leaving the [EU] or indeed various options thereof.”83

After a period of quiet the vexed issue of government sponsored negative impact assessments was raised again on January 29, 2018 when the news website BuzzFeed published leaked government analyses of the economic consequences of various Brexit options. These predicted, for example, that even retention of full access to the single market through membership of the European Economic Area would result in a reduction of growth by 2 per cent over 15 years. With a comprehensive free trade agreement the reduction would be 5 per cent over that period but a “no deal” Brexit with reversion to WTO rules would see the reduction up to 8 per cent. It was predicted that a trade deal with the United States would be likely to claw back no more than 0.2 per cent. It was reported that the documents had been considered so sensitive that individual

83 For useful coverage over the last quarter of 2017 see The Guardian, October 13 and 30; November 2, 7 and 28; December 6 and 7.

19

Page 20: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

ministers to whom they might be shown would not be permitted to keep copies.

The day following the leak to BuzzFeed Brexit Minister of State Steve Baker told the Commons that even his department’s ministerial team had only just been consulted on the paper, that they had made it clear that it required “significant further work,” was a “selective interpretation of a preliminary analysis” and, he ventured to suggest provocatively, that it constituted an attempt by Treasury officials to “undermine our exit” from the EU. Probably with half-facetious intent Baker volunteered that civil service predictions were “usually wrong.”

On January 31, 2018, The Times newspaper quoted a “senior government source” as accusing Sir Jeremy Hunt, the cabinet secretary, of conspiring with the Treasury to produce the research under the auspices of the government economic service in order to avoid criticism that it was based on previous work carried out by the department before the Referendum. Another such source was quoted as having suggested that Sir Jeremy had timed the document’s release to “soften up” ministers before a crucial cabinet meeting the following week to discuss the government’s objectives for a future economic relationship with the EU.

In the Commons Baker had agreed with a prominent Conservative back-bencher that it was “essentially correct” that they had both been told by Charles Grant, of the Centre for European Research think-tank, that the Treasury were drawing up economic modelling to make the case for remaining in the EU customs union. He was obliged to return to the Commons next day to admit that Grant had not passed on such a claim, as was revealed by an audio recording of the meeting in question, to assert that he believed the claims were “implausible because of the long standing and well regarded impartiality of the civil service,” and to make a humble apology to Grant and to the House.Leave decision made in spite of general negative impact predictions or blindly without assessmentsIf a range of impact assessments had been undertaken and in the main showed negative consequences it might have been difficult for the government to establish that their exercise of a leave decision was justifiable. Equally, embarking on a leave decision without having first obtained

substantial assessments might be regarded as wholly irresponsible.

“Wednesbury” unreasonable Either way, the decision would arguably have been open to challenge on the basis of the administrative law principle that a person or body having authority or discretion to take a certain course of action or to act in a certain way must, in exercising that discretion, act reasonably within the meaning of Associated Provincial Picture Houses Ltd v Wednesbury Corporation.84 A court would need to ask whether, notwithstanding the Referendum outcome, the decision to leave the EU in the face of the host of negative assessments was manifestly so unreasonable an assumption that no reasonable person acting reasonably could have made it.85

One important factor which would probably need to be resolved before determining whether the government acted reasonably is the much debated question whether member states can unilaterally revoke an Art 50 decision.86

Delegated decision based exclusively on the Referendum outcome The Prime Minister’s letter to Donald Tusk made it abundantly clear that the government were purporting to implement the Referendum outcome as representing the “will of the British people.”

Illogicality of designating a minority as a majority One must ask what exactly it is that the government were professing to implement. This will involve focusing on the key fact that although 51.9 per cent of the ballot chose withdrawal this represented only 37 per cent of the registered electorate, not counting the millions of expatriates excluded from the ballot in spite of an express commitment to include them, a commitment made in that same 2015 Tory Manifesto which promised the EU Referendum. Those who did not vote can properly be regarded as having abstained.

Whether a wafer thin majority of 51.9 per cent of the votes cast, not counting abstentions, could ever be said to represent a decision of the British people to change the status quo is questionable enough.

84 (1948) 1 KB 223).85 It may additionally be submitted that the Prime Minister failed to comply with the principle of proportionality, an issue separate from Wednesbury reasonableness which applies to cases of alleged breach of the European Convention on Human Rights and EU law.86 Of which see later.

20

Page 21: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

But that slight balance in favour of withdrawal is not the issue. By invoking the Referendum result as the rationale for withdrawal the Prime Minister (ie the government) was applying the notion that the expressed desire for withdrawal from the UK of no greater a minority than 37 per cent of the registered electorate (not counting the estimated 2.5 million expatriates who were promised the franchise but deprived of it on a wholly implausible pretext) might be taken as the manifestation of the intention of a decisive majority of the UK as a whole. Such a proposition is an arithmetic absurdity. It is preposterous. It would stand logic on its head.87

It may be asked rhetorically, then, whether it could conceivably have been “Wednesbury” reasonable for the government to have decided to take the UK out of the EU purely on the strength of the mantra that the referendum result expressed the will of the British people. For the government to have made such a decision would have been manifestly so unreasonable that no reasonable person acting reasonably could have made such a decision – the test in Wednesbury. On that basis one could conceivably have challenged the decision.

For the reasons set out in the next section on the time bar issue it is probably now too late to bring an action for judicial review in order to challenge the reasonableness of the government’s withdrawal decision. It is interesting to examine what might the effect be of raising the issue in the case now before the EUCJ referred to earlier?88 Supposing the action succeeds and the EUCJ were to declare that in purporting to withdraw the UK from the EU on the strength of the supposed will of the people the UK government acted unreasonably and therefore unlawfully. Suppose the European Commission were accordingly ordered to suspend all withdrawal negotiations with the UK until such time as a properly conducted Referendum be held, with the 2.5 million presently disenfranchised expatriates being permitted to participate. Such an order could provoke a hornet’s nest, with the UK Parliament voting to quit the EU without a deal.

The time-bar issue

87 One would fain accuse the Prime Minister, the decider-in-chief, as being mathematically moronic. 88 Above page 5.

In their response to all three claims the Secretary of State for exiting the EU successfully maintained that under r.54.5(1) of the Civil Procedure Rules, the claims were out of time, significantly more than three months having passed since Mrs May’s letter was delivered to Donald Tusk on March 29, 2017. The government were no doubt fortified in their confidence that the Webster action would be held to be time-barred by the fact that Dr Watt and the anonymous claimant have now both been refused permission to proceed partly on the basis of the time bar.

The central plank of all three claims against the government was that no A50(1) decision had ever been made “in accordance with [British] constitutional requirements.” It was the contention of this commentator that if that be right and the Notification Letter did not afford notification of an A50(1) decision it was a constitutional non-event and bore no legal significance. Very simply, the clock could not prima facie begin to run from a non-event. The essence of the Webster action was that there was no constitutional mandate for the government to proceed to withdraw the UK from the EU. For the government to oppose the claim on the basis that it was time-barred was petitio principii. It begged the fundamental question of validity, assuming the very opposite of what the claimants had to prove. Before any question of time-bar could be raised the court had perforce to adjudicate on the validity issue. If the Webster Claimant won there could be no question of a time-bar.

In Webster, the Claimant offered a number of arguments for denying the validity of the time-bear defence. Alternatively, grounds were advanced for an extension of time.89

Not out of timeReliance was placed on R (Burkett) v Hammersmith and Fulham LBC90 in which Lord Steyn was particularly critical of an approach adopted by some lower courts of seeking to determine the substantive act or decision which is the real basis of the claim and starting the time running from that act or decision.91 In Webster the Claimant purported to concede that the Notification Letter was an unlawful government action amenable to judicial review but

89 PHSA, section F, para 58.90 [2002] 1 WLR 1593 (paras [47]-[48],91 PHSA, para 60.

21

Page 22: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

asserted that the conduct of the negotiations without the legal precondition of a constitutionally valid decision having been satisfied, was a continuing and separate breach.92 As the conduct of the negotiations was ongoing there could be no question of the claim being brought out of time.93

It was this commentator’s contention that a non-event is not necessarily an unlawful event, however egregious. On the other hand, the negotiations may arguably be unlawful in that they have consumed copious quantities of public funding without legal justification, are the cause of much distress and anxiety and could lead to a non-mandated withdrawal treaty. As the letter was the first step towards the negotiations it might have been regarded as unlawful for that reason.

The Claimant advanced a second reason why the claim is not late.94 For a claim involving questions of EU law the time for bringing a claim would not begin to run until the claimant learnt, or ought to have learnt, that the government act being challenged was unlawful.95 In the present case it was contended that the government had “continually shifted their position on the questions of what the decision was, by whom it was taken, and when.” It was contended that in various documents spanning the time from notification to the present, three separate positions were advanced and none identified a legally effective decision to withdraw.

Importantly, it was contended,96 the govern-ment’s position that sending the Notification Letter satisfied the constitutional requirements, and that no decision was needed, was not asserted until the Defendant’s letter before action, dated 28 November 2017. Before that date, it was contended, a claim would not have been feasible because it was not clear what had to be challenged; and without knowing by what process and by what actor the decision (if any) had been made, it was not possible to determine whether there were judicially reviewable flaws in that process. This was a situation squarely within the Uniplex and SITA principles. The claim in Webster, filed on 21 December, 2017, was

92 Ibid.93 Ibid, para. 61.94 Ibid, paras 62-64.95 SITA UK Ltd v Greater Manchester Waste Disposal Authority [2012] PTSR 645, approving Uniplex (UK) Ltd v NHS Business Services Authority [2010] PTSR 1377, [5].96 PHSA, para 65.

brought promptly and easily within three months of the date the Claimant was told by the government for the first time that there had been no decision.

By reference to a detailed chronology appended to the PHSA the claimant in Webster demonstrated that in almost two years since the referendum on 23 June 2016 the UK Government had held no consistent position about what constituted the decision to withdraw.97 During that time UK officials hade variously ascribed the decision to the following:

(1) The referendum result.(2) Government policy, adopted before and

after the referendum, to implement the result regardless of what that was.

(3) The announcement by the Prime Minister in a speech at the Annual Dinner of the Wales Confederation of British Industry on 1 December 2016 of a decision taken by her but without adverting to when it was taken or for what reasons.

It was noted that frequently the one statement would advert to more than one of the three propositions.98 However, as the Claimant pointed out, none of these public statements took the position ultimately adopted by the government, namely that there had not been and did not need to be a decision by Parliament at all. It is noted that that was first promulgated in November, 2017.

It is further noted that the rule in Uniplex and SITA could only apply if the decision being challenged was within the scope of EU law. The claimant acknowledged that it would not apply if the issue in question arose solely under the “domestic law of the Member States where no element of EU law was otherwise applicable.”99 In the present case the existence or otherwise of a decision under A50(1) self-evidently fell squarely within EU law.

Reasons for extending timeIn anticipation that the court at the Permission Hearing, might conclud that an extension of time was required to bring the claim, the Claimant cited the following grounds for seeking an extension:100

97 Ibid, para 67.98 Ibid, para 68).99 R (Macrae) v Herefordshire District Council [2012] 1 CMLR 28, at 752 [69].100 PHSA, paras 73 to 77.

22

Page 23: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

(1) It was well-established that the importance of the issues raised by an application can constitute a reason for extending the period, even where the reasons for delay are questionable.101 The present claim could hardly raise an issue of greater public and constitutional importance.

(2) It was appropriate, when considering delay, to consider the general merits of the case.102 The matters raised by the present claim were, at least, strongly arguable given the UK government’s apparent inability to adopt a consistent position when asked to identify the relevant decision.

(3) The Remedy sought by the Claimant was limited to a declaration and she was not seeking to nullify any progress in the Brexit negotiations. The effect of a declaration would be that a withdrawal decision would have to be sought from Parliament but the timeframe could withdrawal could be extended. It might be asked whether a withdrawal decision could be enacted retrospectively and if so whether that would rescue the current timetable.

(4) It would be detrimental to good administration if the issue of constitutional and EU law in this case were not determined by a domestic court.103

As to (4) the Claimant noted104 that in Burkett, supra, Lord Steyn said that while good administration was served by requiring judicial review claims to be brought promptly he also stressed that it might not be served if government actions were rendered immune from challenge from an early date.105 Other “countervailing policy considerations” relevant to good administration included exposure of a clearly unlawful decision, and the protection of community

101 R v Customs & Excise Commissioners, ex p Eurotunnel Plc [1995] CLC 393, at p.402C (and see R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482, at p.1485G).102 Arulanandam v Secretary of State for the Home Department [1996] Imm AR 587, at p.592.103 Citing R v Restormel BC, ex p Corbett [2011] EWCA Civ 330, at [32].104 PHSA, para 78.105 Ibid [44]-[47].

interests. The Claimant argued106 that a powerful countervailing policy consideration applicable in the present case was that refusal of permission on the grounds of delay and the consequent avoidance of an opportunity to determine the domestic constitutional issue raised by the claim would mean that if the basis of the claim is correct then the withdrawal negotiations currently in train are unlawful and any agreement entered into between the UK and the DEU would also be unlawful.

As the Claimant noted107 a consequence of the UK government having no mandate to conduct the negotiations may be that under Art. 218(11) of the Treaty on the Functioning of the European Union the European Parliament or any Member State may request an opinion from the Court of Justice of the European Union (CJEU). Art. 218(11) empowers the CJEU to examine and decide “on the appropriate legal basis for the act by which the Community will conclude” an international agreement, including resolving doubts as to “either the substantive or the formal validity of the agreement with regard to the [Treaties].”108 The CJEU therefore had jurisdiction to examine and determine whether A50(1), which imposes a pre-condition on the exercise of the A50(2) powers to conclude an agreement, has been satisfied. If the CJEU were to rule that the negotiations are non-mandated it could well order the European Commission to suspend any further talks with the UK.

The Claimant noted that this is no mere theoretical possibility.109 There were numerous reasons why a particular Member State might object to the terms of any proposed settlement and move to challenge it under A218. Ireland’s interest in the question of its border with Northern Ireland and Spain’s interest in the Gibralter question were only the most obvious examples which might be contemplated. It was noteworthy that a request for an opinion need not be reasoned.110

106 PHSA, para 79.107 Ibid.108 Opinion 1/08 Competence of the European Community to conclude agreements modifying the Schedules of Specific Commitments of the Community and its Members States under the General Agreement on trade in Services [2009 ECR I-11129, paras 106, 108, 110.109 Ibid, para 80.110 See ibid, n.12 for authorities.

23

Page 24: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

The Claimant argued that the interests of good administration clearly require a UK court to decide whether there has been a legally effective decision under A50(1), rather than that this issue of domestic constitutional law be determined by the CJEU.111 It was argued that the risk that the issue might be sent to the CJEU was a “countervailing policy consideration” against the importance of speedy challenge to administrative decisions.112

If an A218 reference were made the CJEU might determine that the A50(1) precondition had not been satisfied. This would mean that the EU would have no power to conclude the withdrawal agreement, with the consequence that “at the eleventh hour” the draft treaty hammered out over a process of two years would fall away entirely, with far-reaching legal, economic and political implications.113 Such an outcome could be avoided by a relatively swift decision in the UK courts. Despite the importance of avoiding delay by imposing a time limit on actions for judicial review, a prompt resolution of the lawfulness or otherwise of the government’s conduct of the negotiations would avoid the risk of most calamitous consequences of uncertainty at a very late stage.

Finally, the Claimant suggested that if the court took the view that it could not do justice to the arguments on delay within the parameters of a permission hearing the court could grant permission for a substantive hearing in which the relevance of any delay to the declaratory relief could be the subject of detailed argument.114

In the event the court dismissed the Claimants arguments for setting aside the time-bar, although the ruling was academic in view of their ruling on the merits.

Article 50 reversibility and the question whether a withdrawal “decision” and “intention” are synonymousA key element in the analysis of the ambit and operation of Article 50 has been the debate over whether or not a decision made under Art 50(1) and

111 (PHSA, para 82.112 Citing R (British Aggregates Associates) v Her Majesty’s Treasury [2002] EWHC 926 (Admin); challenge out of time by 6 months permitted, in order to preclude “uncertainty and delay, wholly adverse to good administration.”113 PHSA, para 83.114 PHSA, para 85.

duly notified under Art 50(2) is reversible. The issue is of importance because the government has always claimed, and continues to profess to assume, that the Art 50(2) notification of withdrawal given by the Prime Minister in her letter to Donald Tusk on March 29, 2017 can never be revoked, that the ensuing process of departure is a journey down a one-way street and that if there is no satisfactory settlement of the final terms of the proposed treaty of withdrawal (the “deal”) the UK would have no choice but to “crash out” of the Union at the end of the two-year count-down from the date of notification in accordance with Art 50(3). It may be asked whether the government really believes this or whether it is merely a negotiating ploy based on a Cold War era MAD-type threat – mutually assured destruction if the EU won’t give what the UK negotiators want? In fact if it is a bluff it is probably directed at Westminster Parliamentarians rather than the EU since although there is undoubtedly some resentment in certain European quarters115 the EU is formally committed to allowing the UK to change its mind any time within the two year period. Indeed President Tusk reiterated the EU’s hope that Britain might yet renounce its withdrawal decision.116

Available options according to the UK governmentThe government’s initial intent was that once the terms of a withdrawal treaty had been ironed out with the EU it would be presented to Parliament for a simple vote of acceptance or rejection. There would be no scope for amendments. However, they have now decided to allow the moving of amendments to the Withdrawal Bill but that if no agreement is reached in due time the UK will leave the EU without a deal. It remains unclear what will happen if Parliament insists on proposing substantial alteration to the original terms of the deal. These would then need to be taken back to the EU for further discussion and amendment and the process could be interminable. Arts 50(3) and (4) of course make provision for extension of the two-year limit and presumably if the 27 other Member States were reassured that the UK was not procrastinating and acting seriously and in good faith they would consent to extension. However, the British government is saying that if Parliament refuses to

115 See eg, Mark Galeotti, “How Putin could yet save Britain from Brexit,” The Guardian, November 2, 2017.116 Reported across the UK national media, October 25, 2017.

24

Page 25: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

ratify the final deal within the two-year deadline or any period of extension the UK would leave without a deal; it would crash out. The government is not countenancing and conceding another possible option: that Parliament might decide that the UK should remain in the UK. This is because they refuse to accept that Art 50 is reversible.

Argument that an Article 50 decisionis inherently reversibleThat an Article 50(1) withdrawal decision is inherently reversible is contended by no less a figure than the Article’s author, Lord (John) Kerr of Kinlochard, most recently in an address to an Open Britain meeting in London on November 10, 2017.117

Although the imperative nature of paras (2) to (5) is contingent on a decision having been made under para (1), the Article says nothing about whether or not the decision itself is revocable. That a Member State has given notice of its decision to leave the Union can hardly mean that until it actually ends its membership it is not entitled to change its mind and stay. This is arguably the case no matter how much such dithering may have caused a drain upon the Union’s coffers and their patience before rescission. For as long as the decision is sustained the statutory procedures remain obligatory but if the decision is rescinded before the Member State is due to leave (whether by treaty or in accordance with two-year automaticity under Art 50(3)) it must be asked whether the obligatory procedures would not be automatically terminated as there would no longer be any live decision to drive them forward.

In particular, it might well be argued that inherent reversibility can be comfortably asserted in spite of the prescriptive terms of Art 50(3) that “[t]he Treaties shall cease to apply to the State in question . . . two years after the notification referred to in paragraph 2.” The validity of a notification under Art 50(2) must be contingent upon the making and sustaining of an Art 50(1) decision. It enjoys no legal standing in its own right. If the decision is revoked would not the notification be automatically cancelled?

There is a cogent rationale why it may be contended that an initial withdrawal decision triggering Art 50 must be inherently reversible and can be rescinded up to the point of departure. It is

117 http://www.open-britain.co.uk/full_text-of-lord_kerr_s _speech_article_50_the_facts

the same Catch 22 that rendered the Referendum unworkable as a basis for making the decision: you cannot make a comprehensive determination of the balance of advantage without negotiating for a deal and you cannot negotiate for a deal without making and giving notice of the decision to leave under Art 50. At the stage when an initial decision is made there can be no means of second-guessing the ultimate terms of withdrawal but the EU will not countenance a formal negotiation process under Art 50 until a withdrawal decision has been constitutionally made and communicated to the Council of Europe. Only the process of negotiation will define the terms and it would be wholly irrational for the Member State in question to be held to the original decision in the absence of knowledge of the outcome.

It is therefore arguably implicit in Art 50 that the original Art 50(1) decision is subject to an inherent discretion to rescind if the proposed deal proves unacceptable to the Member State’s law-making body, or for any other reason. The idea that once a Member State has decided in the first instance to withdraw and has given Art 50(2) notice it would be subject to a “take-it-or-leave-it” offer with no option to “leave it” but only to “leave” (as it were) would arguably mean that there could be no comity in the negotiation process. The departing Member State would be held over a barrel from the outset. In short, it may asked whether the very notion of Art 50 irreversibility is not absurd. When Lord Pannick QC addressed the Supreme Court in Miller by likening an Art 50(2) notice to a bullet which once fired could not be recalled by the marksman it might be argued that he was taking the metaphor “trigger” to describe the notice too literally. Although it may be contended that the comparison was miscon-ceived it nonetheless reflected common ground between the government and the claimants in Miller. It is on the basis of supposed irreversibility that Prime Minister Teresa May announced that the Withdrawal Bill would include a provision for withdrawal at 11 pm on March 29, 2019, two years to the day after the delivery of her letter to President Tusk, purporting to convey the UK’s intention to leave the EU.118

118 See Teresa May, “Let me be clear: Brexit is happening on Friday, March 29 2019, at 11 pm,” Daily Telegraph, November 10, 2017.

25

Page 26: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

“Three Knights”That denial of the right and opportunity to rescind a decision would be a fundamentally unreasonable interpretation of Art 50 was asserted in Three Knights.119 Discussing whether or not an Art 50 notice was irrevocable, the writers observed with compelling logic:

“Meaningful Parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms.”120

Three Knights therefore concluded that, contrary to the common view of the parties in Miller, Art 50 does not preclude the UK “notifying, as authorised by Act of Parliament, its intention to leave the [EU]” subject to conditions, including “(iii) Parliament deciding . . . that the [UK] shall . . . otherwise change its intention to leave.”121 Three Knights recommended122 that the Bill include a provision making it clear that the UK shall leave the EU when Parliament has legislated its approval of the terms of a withdrawal agreement, or of withdrawal in the absence of an agreement and they suggest that that would be consonant with the proposition that Art 50 may be interpreted to allow abandonment or revocation of the leave decision. They were quite insistent that the Bill could not–

“serve as the legislative basis for the UK’s withdrawal from the EU unless it is read as an exceptionally wide enabling law, handing to the Executive power to decide which legal rights may be given away or lost through negotiations with the European Union, or by leaving the EU without an agreement. No such intention is expressed on the face of the Bill and we doubt that the Courts would interpret the Bill in that way.”123

In their view then, it did not and could not declare a finite withdrawal decision. They therefore appear to have chosen to characterise the initial “decision” rather as an expression of conditional intent subject to later confirmation or revocation once the

119 Above, n.59.120 http://www.ttforum.co.ukforum/download/ file.Php ?id= 337154)121 Para 60, p.23.122 Para 2(v), at p.2.123 Para 21.

negotiation process was complete. As will be argued later the distinction between an initial decision which can be rescinded and an expression of conditional intent which might never be converted into a final decision is no more than semantic. The basic principle is sound.

Where, however, it is submitted Three Knights went wrong was in confusing a semantic distinction with one of substance. In favouring the inclusion of a clarifying provision, they assumed that the Bill already contained an unexpressed, implicit recognition of the existence of a conditional intent to withdraw sufficient to satisfy the requirements of an Art 50(2) notice.

Conjuring “intention” out of nowhereArt 50(2) and the EU(NoW) Act 2017 both refer to the UK’s “intention” to withdraw. It appears to be for that reason that Three Knights and Kenneth Armstrong, University of Cambridge Professor of European Law, argue that there is a distinction between decision and intention and that the Act acknowledged the existence of a conditional intent sufficient to activate Art 50.

In his online post referred to earlier (see p.3, above) Professor Armstrong acknowledges that there was a “certain logic” to the general thesis in my Counsel Magazine online article but dismissed it as “a clever little argument” to be treated as misguided.124 He asserts that the relationship between Arts 50(1) and (2) is not as I had depicted, that my mistake was in failing to grasp that they operate on different levels and that while one has implications for the other, there is no automaticity to their legal articulation. He argues that whereas Art 50(1) is descriptive of a formal withdrawal decision under domestic law, Art 50 procedures apply under EU law as soon as the European Council is notified under Art 50(2) of the Member State’s intention to withdraw. In my Counsel Magazine Online article I had argued that “if there has been no [statutory] decision to withdraw there can be said to be no intention to do so, the words decision and intention being synonymous.” With no decision there can be no mandate for valid notification.

Armstrong disagrees, claiming to draw a material distinction between the formal decision to withdraw (with which the EU will not be concerned) and a less formal expression of intention to be notified to the 124 “Has Article 50 really been triggered?” above, n.8.

26

Page 27: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

Council under Art 50(2). Even though there may an issue under domestic law as to whether there has been a formal decision the EU will not, he contends, be concerned with that but only with notification of the intention. Once such notification is given A50 is set in train and continues even though there may be a challenge in UK domestic courts to the validity of the putative decision.

Three Knights had propounded the same argument in effect. In support of their general thesis that an Art 50(1) decision is different from the intention referred to in Art 50(2) they cite the “use [in Art 50(2)] of the word ‘intention’ . . . and the present tense ‘which decides,’ rather than ‘has decided,’” to allow for the possibility “that a Member State may change its decision, and, therefore, its intention.”125 Three Knights says that the use of the present tense implies an ongoing but not concluded process of decision-making driven by an intention. This is essentially the position held by Professor Armstrong.

It was contended earlier that an Art 50(1) decision is inherently reversible until the point of departure. By contrast, so far as one can make out from their reasoning Three Knights and Armstrong get round the problem of supposed irrreversibility by contriving the existence of a qualitative distinction between an unconditional, concluding “decision” under Art 50(1) and a conditional or provisional intention which will justify an Art 50(2) notice without the making of a concluding decision but which might never be upgraded into a decision. However, the source and occasion of the expression of that intention according to Three Knights and Armstrong remain elusive.

In the absence, then, of any identification of the constitutional legal source of the withdrawal “intention” there is simply no option but to revert to the withdrawal decision authorised by Art 50(1) as the only available point of reference by which to identify its meaning. We can only do this if we take the expression “which decides” in A50(2) as “which has decided,” a perfectly normal and satisfactory use of the present tense to stand for the perfect tense. The Three Knights reasoning is strained and unconvincing. They are translating it as “which is deciding” (present continuous) rather than “which decides conclusively,” or “which makes a conclusive

125 Para. 49.

decision”. To convey the present continuous in a meaningful way one would write “A Member State which is in the process of deciding whether to withdraw . . .” However, in that case it would be utterly contradictory and illogical to continue with “shall notify the European Council of its intention.” If you have not yet decided on a course of action but are only considering whether or not to decide to embark on it you do not have the intention to do so.

I decide to get a divorce. To my wife’s chagrin the papers are signed, the court preliminaries are undertaken but then at the eleventh hour I realise I have made a terrible mistake and withdraw the suit. The act of divorce is averted yet my change of heart does not in any degree diminish the fact that I had originally decided – intended – to divorce. It is almost too obvious for comment that the Art 50 decision and notification are not the acts of leaving. Jessica Simor QC, who appeared in Miller, agrees. Writing in The Guardian, she observes that Art 50 “provides for the notification – not of withdrawal but of an ‘intention’ to withdraw.”126 An Art 50 withdrawal decision, expressed for example by an Act of Parliament stating “The UK shall withdraw from the EU” is a statement of intent as to a future action. The Art 50 decision and notice are two components of the expression of that intent. The withdrawal itself will come later on the implementation of the withdrawal treaty.

Decision and intention are two terms which in the present context yield an identical meaning. They both express a definitive purpose, where intention expresses more than a mere inclination towards a course of action short of a decision. Consultation with standard dictionaries confirms their synonymity. To decide is to determine upon a certain course, settle, resolve, make up one’s mind. To intend is to fix the mind upon a specific design. The notification required by Art 50(2) is a reference to an Art 50(1) decision. The “intention” in the primary clause of the first sentence of Art 50(2) is clearly a reference back to the withdrawal decision in the subordinate clause “which decides to withdraw” and is in turn therefore a reference to the withdrawal decision authorised by Art 50(1). The word was doubtless chosen out of stylistic considerations perhaps to avoid inelegant repetition,

126 “Why it’s not too late to step back from the Brexit brink,” The Guardian, October 7, 2017.

27

Page 28: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

as in “A Member State which decides to withdraw shall notify the [EC] of its decision.” The drafter might equally have chosen the phrase “shall accordingly notify the [EC].” Three Knights coupled the use of the two different words with a present continuous reading of “which decides” to manufacture a wholly artificial notion of an intention which is not an Art 50(1) decision but which will nonetheless suffice to trigger an Article 50 notification.

I would argue that an Art 50(1) decision may be rescinded for the fundamentally necessary reasons discussed earlier. The argument does not need the support of the strained construction of the wording of Art 50(2) offered by Three Knights. It is understood that the campaign “People’s Challenge” (which commissioned Three Knights) has launched an action to establish the reversibility of an Art 50 decision/notice.

How the post facto construction of the result retrospectively distorted the abstention element We have already examined the matter of the exclusion from the vote of the expatriates and fact that only 37 per cent of the registered electorate voted in favour of withdrawal. There is another crucial factor which has rendered the 2016 referendum worthless as a test of opinion.

As we have seen, the EU Referendum Bill was presented and duly enacted on the basis that the government would reflect on the outcome and would invite Parliament to debate the whole issue, making a decision on the basis of all the known factors. (That the main factor – the outcome of the negotiation process – was necessarily unknown is beside the point.)

It is not unrealistic to assume – because it was the officially proclaimed basis on which Parliament decreed that the result of the referendum should be treated – that a significant number of those electors who refrained from voting did so precisely because the Referendum was officially vouchsafed to them in Parliament as advisory, a mere test of opinion. Had they known that a bare majority of the votes cast would be treated by the British government and then by Parliament as amounting to a binding decision without any further consideration a significant proportion might very conceivably have

chosen to participate. Moreover, it is surely no exaggeration to suggest that an unidentified proportion of that 28 per cent might very conceivably have voted to remain if they had only possessed second sight that the outcome would be manipulated in contradiction of the avowed statutory purpose. Their votes might have been decisive in favour of remain.

For that reason they may be justified in harbouring a legitimate and powerful grievance but it is a cause for complaint not confined to that unidentified number. Had the purpose of the Referendum as ultimately applied been pitched to Parliament when EURA was enacted the result might have been significantly different. It might have resulted in a significant majority the other way and the aspirations therefore of all who voted for remain have been defeated by the government’s “strategy.”

Coupled with the mischief over the expatriates, on any scale of fairness and propriety that should invalidate the fairness and value of the referendum. It should utterly remove from under the feet of the government and any Parliamentarians who subscribe to the myth of the “people’s will” any grounds for pursuing Brexit on that basis.

Opportunity for a new referendum It will be interesting to conjecture now what might follow from a ruling by the EUCJ in the impending Fouchet action that the Referendum wrongly excluded the expatriates caught by the “fifteen year rule.”127 If the withdrawal negotiations be ordered by the court to be “annulled” (to use the technical usage), in effect directing the European Commission to suspend negotiations with the EU, the UK Parliament would have to decide whether it will unilaterally withdraw from the treaties and “crash out” of the EU without a deal. The alternative course might be for the UK Parliament to enact provision for a “second” or “corrective” Referendum to be conducted on a footing that would be acceptable to the EUCJ. If the negotiations be incomplete at that stage the referendum could hardly be dressed up as a people’s judgment on the proposed withdrawal agreement.

Hitherto of course the government have been insistent that there will be no “second” Referendum. Any adjudication on the proposed terms of 127 See above p.5.

28

Page 29: davidwolchover.co.ukdavidwolchover.co.uk/docs/False mantra of the people's will.doc · Web viewFalse Mantra of the “People’s Will” David Wolchover explains the legal rationale

First published July 6, 2017 www.DavidWolchover.co.uk

agreement will at the very least be a matter for Parliament (if not for ministers). A decision by the EUCJ upholding the Fouchet action might engage the UK Parliament in the question whether it could have been right to predicate the March 29, 2017, notice (now held to have been a delegated decision: Webster) on the outcome of the Referendum. It would be a chance to consider whether it was right to adopt as the UK’s intention a leave preference expressed by no more than 37 per cent of the registered electorate, not counting the 2.5 million expatriate Britons to whom the franchise was not delivered in spite of an undertaking prior to EURA that they would be given the vote.

Now would be the opportunity to sanction a new, differently but properly constructed and viable referendum. This time it might prescribe a super-majority threshold (based either on the actual votes cast or on the totality of the registered electorate). This time the outcome could be made decisive and binding without any requirement for formal Parliamentary ratification. In debating such a proposal Parliament would doubtless have in mind the fact enfranchisement of those expatriate Britons who were excluded from the vote last time would afford a more genuine indication of the preponderance of the will of the British people. That factor, and evidence of the vitiation of the Referendum by endemic corruption of the electoral process supply reasons enough to conduct a more constitutionally cleansed process.128

It has been conjectured that the House of Lords may well insist on another referendum, although there is a measure of political nouse in the caveat that this would not be intended to serve as a “re-run” of the first but would merely provide an opportunity for the British public to make a judgment on the outcome of the negotiations.129

128 It is clearly beyond the scope of this treatise to review the possible tainting of the Referendum result in the light of the activities of Cambridge Analytica, as to which see originally eg Carole Cadwalladr, “Cambridge Analytica affair raises questions vital to our democracy,” Observer, March 4, 2017, https://www.theguardian.com/politics/ 2017/mar/4/cambridge-analytica-democracy-digital- agearticle.129 For two intriguing and nuanced essays on the possibilities by Labour peer Andrew Adonis, see “The way forward on Brexit is a new vote on whatever EU deal is reached,” Observer, 10 September, 2017, and “Lords must add a referendum on Brexit deal to EU (Withdrawal) Bill,” The Times, September 15, 2017. For a report on Adonis’s Observer piece see Toby Helm, “EU

How exactly it would work or what the choice on offer might be has by no means yet clearly emerged. It is early days. In various interviews Sir Vince Cable MP, new leader of the Liberal Democrats, explained that his party’s “flagship pledge” – a second referendum – envisages that towards the end of 2018 the public would be offered the choice between approval of the final withdrawal deal or “exiting Brexit.”130 Such a referendum offering such a choice would be welcome as a corrective for the fundamental deficiencies of the 2016 Referendum.131

The Salisbury Convention An amendment requiring a new Referendum would not be subject to the Salisbury Convention. The convention normally prevents the Lords from amending any Commons Bill which implements a manifesto commitment. The Conservative and Unionist Party manifesto for the recent General Election stated: “The final agreement will be subject to a vote in both houses of parliament.”132 This would not be inconsistent with the holding of a referendum to precede an Act of Parliament or one that Parliament decreed would be decisive. In any event, the fact that the government lost its majority at the 2016 Election would arguably negate the application of the Convention.

About the authorDavid Wolchover is a barrister of Gray’s Inn, London.He is former Head of Chambers of 7 Bell Yard, Temple Bar, London WC2.

immigration offer could lead to Brexit reversal, claims Adonis,” Observer, 10 September, 2016.130 Evening Standard, 14 September 2017; The Observer, September 17, 2017; BBC’s Andrew Marr Show, same date.131 For stimulating commentary on a second referendum see Daniel Finkelstein, “A second EU vote could destroy Remainers,” and letters to the editor, “Pros and cons of a second EU referendum,” The Times, January 31, 2018.132 Forward, together, https://s3.eu-west-2.amazonaws.com/ manifesto2017/Manifesto2017.pdf, p.36).

29