Invoking Article 50: the Law, the Constitution and Politics

• The legal power to invoke Article 50 of the Treaty on European Union is in law a prerogative power vested in the Crown, which may be exercised by government ministers without the need for authorisation or consent from Parliament. There is no credible legal argument supporting the legal challenge being advertised by law firm Mishcon de Reya.

• Constitutionally the referendum result was decisive and binding and not just advisory. The referendum result not merely authorises but positively mandates the government to exercise its legal power to give notice under Article 50.

• As a matter of democratic politics it is astonishing that so many people should apparently regard it as legitimate to engage in activities designed to frustrate the expressed will of the British people. Sadly, this is a symptom of the serious damage which 40 years of membership has done to our sense of national cohesion. This damage can begin to heal once we leave.

Moves to undermine and block the referendum result

Since the result of the Brexit referendum was announced on 24 June 2016, it has become clear that there are significant forces in this country who do not accept the democratic result. There have been both legal and political moves in certain quarters to seek to delay, frustrate, re-run or somehow ultimately reverse the decision taken by the people of the United Kingdom.

One of those moves has been a legal action threatened by the law firm Mishcon de Reya on behalf of undisclosed clients, whose stated aim is “to ensure the UK Government will not trigger the procedure for withdrawal from the EU without an Act of Parliament.” Mishcons website

The stated aim of this legal action is to “protect the UK Constitution and the sovereignty of Parliament”. But there can be little question that its true aim is an attempt to block the implementation of the referendum result through using a pro-Remain majority in Parliament – particularly in the House of Lords – to frustrate the expressed will of the people. Indeed, the whole action is breath-takingly hypocritical: invoking professed concern for the sovereignty of Parliament in order to fetter and ultimately extinguish that sovereignty through continued membership of the EU.

Another move on the political front has been as online petition calling for a retrospective nullification of the referendum result and a re-run which states that:

“We the undersigned call upon HM Government to implement a rule that if the Remain or Leave vote is less than 60% based on a turnout less than 75%, there should be another referendum.”

It has been reported that that petition attracted 4 million signatures, but on 10 July 2016 it was formally rejected by the government.

A third move, this time a mixture of legal and political, has been a letter to the Prime Minister which claims to be signed by over 1,000 barristers.  This calls for an Act of Parliament before the procedure is triggered under Article 50 of the Treaty on European Union for the withdrawal of the UK from the European Union, and for a Royal Commission to examine the consequences and report back before the vote is taken on such an Act.  Again, there can be little doubt that this is not a serious attempt to enhance the workings of Parliamentary democracy, but rather an attempt to delay and frustrate the implementation of the decision of the British people for years in the hope that it can somehow be reversed.

This series of attacks on democracy raise a number of legal, constitutional and political issues, which will be addressed in depth in this article.

The law on invoking Article 50

Article 50 of the Treaty on European Union was inserted into that Treaty by the 2007 Lisbon Treaty. It is often (inaccurately) referred to as “Article 50 of the Treaty of Lisbon”. It entitles any Member State to withdraw from the European Union and sets out (in broad outline) the procedure to be followed. Article 50(1) and the first sentence of Article 50(2) set out in very simple terms how the process of withdrawal is begun:

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

2. A Member State which decides to withdraw shall notify the European Council of its intention. …”

As paragraph 1 above confirms, the constitutional law of each Member State governs how that State shall take a decision to withdraw and who, under its national law, has power to take such a decision. The procedure by which this will done will vary from State to State. For example, where, as in the case of some States, membership of the EU has been embedded into the national constitution, it might be necessary to amend that constitution by some special procedure in order for the State to make a valid decision to withdraw.

The United Kingdom does not have a written constitution which spells out who has the power to take a decision to withdraw from the EU and communicate that decision to the European Council. Therefore, one starts by looking at the general law on who has the power to conclude and withdraw from international treaties. And the general rule is quite clear. Under the UK’s constitution, it is the Crown (the Queen acting under the Royal Prerogative in practice on the advice of government ministers) which has the power to enter into and withdraw from international treaties.

Before 2010, there was no legal requirement for Parliament to approve the ratification of treaties or even to be consulted, although there was a constitutional convention (the “Ponsonby rule”) under which the government undertook to lay treaties in front of Parliament 21 days before ratification. The Constitutional Reform and Governance Act 2010, sections 20 to 25, put the Ponsonby rule on a statutory footing and empowers the House of Commons (but not the House of Lords) to block the ratification of a treaty by passing a resolution against it.

Many international treaties contain provisions similar to Article 50 which allow notice to be given withdrawing from or terminating the treaty. The 2010 Act applies to the initial ratification of a treaty, but does not apply to the giving of a notice withdrawing from it or terminating it, or indeed to measures or decisions made under it (as made clear by section 25(2)). Accordingly, the giving of a notice of termination or withdrawal remains part of the prerogative powers of the Crown untrammelled by any legal requirement for the approval of Parliament.

Although the Crown has extensive powers over international treaties which as a matter of law can be exercised without reference to Parliament, it has no power to alter the internal laws of the United Kingdom. This can only be done by Parliament, or under specific powers granted by Parliament. This means that the Crown is in practice unable to ratify international treaties which contain obligations to alter the internal law of the United Kingdom without Parliament first having made the necessary changes in the law, or at least being very confident that Parliament will make the required changes, or it would end up in breach of its international treaty obligations.

It is sometimes loosely said that Parliament has “ratified” a treaty when it passes an Act which gives effect to a treaty in the UK’s internal law. But this is inaccurate – Parliament enacts the necessary changes in the law and the Crown then ratifies the treaty under its prerogative powers. They are separate acts, one by Parliament the law-maker, and the other by the Crown exercising its international treaty powers.

Parliament has made the necessary changes in the UK’s internal laws to give effect to the European Union treaties, mainly through the European Communities Act 1972. This was passed in 1972 in order to give effect to the Treaty of Rome which applied to the United Kingdom from 1 January 1973. Whenever the Treaty of Rome has been amended, Parliament has passed another Act amending the 1972 Act in order to give the necessary effect in the UK’s internal law to the European treaties as amended.

But the fact that the European Communities Act 1972 gives effect to the European treaties in UK internal law does not exclude the prerogative powers of the Crown in relation to the operation of those treaties on the international plane. And actions taken by the Crown on the international plane will have consequential effects of altering the law within the UK. For example, if a Minister votes in the Council of Ministers in favour of a Regulation which is directly applicable inside Member States, that Regulation will then alter internal UK law.

The giving of notice under Article 50(2) of the Treaty of European Union is an act on the international plane, which alters or affects the UK’s international treaty obligations by bringing the UK’s adherence to the EU treaties to an end after a maximum 2 year period. Clearly this will then produce a consequential effect in UK domestic law since once we leave the EU, its various laws and rules will cease to apply internally in the UK. But the primary effect is on the international plane, and the subsequent effect on domestic law is consequential.

Insofar as it is possible to understand the arguments put forward by Mishcons in their intended legal action, it would appear that they wish to argue that Parliament by enacting the 1972 Act has (by implication) restricted the exercise of the royal prerogative to prevent the Crown from giving notice under Article 50 without the consent of Parliament. The argument has to be based on implication because there is nothing in the express words of the 1972 Act or any Acts of Parliament which follow it which restrict the Crown’s right to exercise this international treaty power.

There are however three answers to this argument.

First, there is no coherent or logical basis for arguing that Parliament has not impliedly restricted the exercise of the prerogative where a Minister of the Crown takes an action which increases EU powers, for example by voting for a new Regulation in the Council of Ministers, but arguing that Parliament has impliedly restricted the exercise of the prerogative power in case where (under Article 50) the exercise of the power results in a reduction EU powers. Such a claimed distinction appears to arise solely from the prejudices of those who seek to advance this argument rather than from any coherent logic or legal principle.

Secondly, the proposition that Parliament has impliedly restricted the exercise of prerogative powers under the European treaties has been rejected by the courts. In R v Foreign Secretary ex parte Rees-Mogg [1994] QB 552 (Lord Rees-Mogg’s  unsuccessful challenge against the ratification of the Maastricht Treaty), Lord Lloyd giving the judgment of the Queen’s Bench Divisional Court rejected an argument that the European Communities Act 1972 impliedly restricted the exercise of the Royal prerogative under the European treaties. He said: “When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms, …”

Thirdly and conclusively, the argument that Parliament has impliedly restricted the prerogative power of the Crown under Article 50 is impossible to reconcile with the European Union (Amendment) Act 2008. That Act was passed to enable the UK to adhere to the Lisbon Treaty by adding it into the list of European treaties in section 1 of the European Communities Act 1972. As pointed out above, the Lisbon Treaty amended the Treaty on European Union by inserting Article 50 into it, as well as making a large number of other amendments to that Treaty and to the Treaty of Rome (which it renamed the Treaty on the Functioning of the European Union or “TFEU”).

But nowhere in the 2008 Act in there any restriction upon the exercise of the Royal prerogative to give notice under Article 50. By contrast, section 5 of the 2008 Act imposed an explicit restriction on the Royal prerogative by requiring that any amendment of the founding treaties under the Ordinary Revision Procedure of Article 48(2) to (5) of the Treaty on European Union cannot be ratified unless approved by Act of Parliament. In addition, section 6 imposed a requirement of Parliamentary approval (by resolution of both Houses) on a number of prerogative actions by Ministers of the Crown under certain other Articles of the Treaty on European Union and of the TFEU.

So Parliament in the 2008 Act created a detailed scheme under which prerogative actions under certain specified Articles of the Treaties were explicitly made subject to Parliamentary control, either by a requirement for an Act of Parliament or for resolutions of both Houses. Since Parliament did NOT include Article 50 among the Treaty provisions where the acts of the Crown or of Ministers require Parliamentary approval,  it is quite impossible to argue that such a restriction of the Royal prerogative arises by implication in the case of Article 50 and of other Treaty articles where Parliament has chosen to impose no such restriction.

In conclusion, the power in law to give a notification under Article 50 is a prerogative power of the Crown which may be exercised by the government without the need for Parliamentary consent or approval. Mishcon’s legal challenge is quite hopeless and is bound to fail.

Constitutional authority and obligation

So far, we have considered the question of who has the legal authority to trigger Article 50, and it is the government exercising Royal prerogative powers.

However, under the UK’s unwritten constitution, the question of who has legal authority to do something is not always the same as who has constitutional authority to do it according to the practice and conventions of the constitution.  There are many instances where the holder of a legal power is constrained by constitutional practice to exercise it or not to exercise it in a certain way.

A famous and well known example is the constitutional convention under which the House of Commons alone is responsible for taxation. When the House of Lords broke that constitutional convention by exercising its legal power to vote down Lloyd George’s 1909 budget, it provoked a constitutional crisis which ended with the curtailment of the powers of the House of Lords under the Parliament Act 1911.

The legal power to trigger Article 50 rests in the Crown (i.e. the government) as explained above. However it is clear that as a matter of constitutional practice, that government legal power must be exercised to give effect to the declared result of the referendum.
First, the Conservative General Election Manifesto of 2015 promised a referendum on membership of the EU in the following terms:

“We believe in letting the people decide: so we will hold an in-out referendum on our membership of the EU before the end of 2017.”

It should be noted that the election promise was to “let the people decide”. It was not a promise to hold an advisory referendum, with the final decision being left to Parliament. Nor was there any mention of minimum thresholds of percentage of vote or of turnout before the referendum would be binding. Therefore the British people were given a politically and constitutionally binding promise in the election manifesto of the successful party that they would be given the final and deciding say in a referendum in which the majority would prevail.

As a matter of constitutional practice, the inclusion of a policy in the election manifesto of a political party which achieves a majority at a general election gives rise to a constitutional mandate to implement that policy.

Secondly, Parliament enacted the European Union Referendum Act 2015, whose formal title stated that its purpose was “To make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union”. That Act authorised the holding of the referendum, regulated who would be legally entitled to vote in it and other matters about the conduct of the campaign, and specified that the question would be: “Should the United Kingdom remain a member of the European Union or leave the European Union?”

The Act does not contain any provision saying that its result is subject to a minimum turnout threshold or a mininum percentage vote in favour of either remain or leave. Such thresholds can be imposed, for example a 40% of the electorate threshold was specified by Parliament in the 1979 Scottish devolution referendum. What would be unprecedented would be restrospectively imposing a threshold after the vote has taken place, as proposed by the petition mentioned above.

The letter from 1,000 barristers claims that the result of the referendum is “advisory” because that Act “does not make it legally binding”.  Clearly there is something seriously wrong with legal education today if 1,000 barristers can be found with such deep ignorance of the British constitution. It is true that the Act does not contain a section at the end expressly saying that the government is under a legal duty to proceed to implement the result of the vote.

But that does not mean that the referendum result is “advisory”. The Act itself does not say that it is advisory. At no point did ministers in their public statements either to Parliament or outside say that the referendum result would only be advisory. On the contrary, they repeatedly said that the referendum would allow the British people to decide the question of whether we remain or leave.

In opening the second reading debate (Hansard) on the Referendum Bill on 9 June 2015, the Foreign Secretary said:-

“This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.” (emphasis added)

And he concluded that speech as follows:

“Few subjects ignite as much passion in the House or indeed in the country as our membership of the European Union. The debate in the run-up to the referendum will be hard fought on both sides of the argument. But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.” (emphasis added)

Thirdly, in the course of the referendum campaign the government spent £9.5million of taxpayers’ money on printing a leaflet and distributing it to all households in the United Kingdom. That leaflet attracted widespread (and deserved) criticism for its gross bias in favour of remaining in the EU. However, on the consequences of the referendum it could not have been clearer. On the page headed “A once in a generation decision” it stated that:

“The referendum on Thursday 23rd June is your chance to decide if we should remain in the European Union.”

It did not say “it is your chance to advise on whether we should remain, the actual decision being taken by Parliament.”

But it went on to be even clearer and more emphatic:

“This is your decision.  The Government will implement what you decide.”

It is therefore clear that the referendum was not merely advisory, but was constitutionally decisive and binding. The clear, repeated and unequivocal promise made to the British people was that their vote in the referendum would finally decide the course which our country takes. Treating the result as merely advisory would be a flagrant breach of the repeated and unequivocal promises made to the British people. There should be no second guessing or reversal of the result by Parliament or by anybody else.

The government is therefore constitutionally mandated to exercise its legal power under the Royal prerogative to trigger the Article 50 process.

Political commentary

What is astonishing about these various moves to frustrate the result of the referendum is that the people involved have so little respect for democracy, and so little self-awareness.  They arrogantly believe that their minority views should prevail in the face of the clear majority decision of the British people. Many of them seem coloured by the view that people who voted to Leave are stupid, uneducated, xenophobic, racist and live outside London, and accordingly their votes are worth less than their own educated and enlightened votes cast by people such as them in London or (even better) in Hampstead.

It is deeply disturbing that any citizens of this country should be so dismissive of the democratic rights of millions of their decent and intelligent fellow countrymen and countrywomen, who cast their votes in the poll with the highest national turnout for 24 years.  The 17,410,000 people who voted to leave the European Union were the highest number ever to have voted in the history of the United Kingdom for a proposition or for a political party.

The astonishing arrogance, petulance, and desperate plotting to negate the democratic decision of the British people which has been displayed since the referendum result was announced is a deeply worrying symptom of the great damage which 40 years of EU membership has done to our sense of national and civic cohesion.  The EU has persistently pursued policies which at every level are designed to weaken the bonds which bind us together as a nation. Its technique is to recruit an elite inside each Member State which regards its primary allegiance as being to the EU and not the country, and which is rewarded with power and influence in return for keeping the serfs under control.

It is by leaving the European Union that we can begin the long term process of healing our nation from this disease, and re-unify our people once again as a proud independent self-governing nation.