Constitutional Law Group January 30, 2017 Europe, European Union, Judicial review, UK government, UK Parliament

Philip Allott: The Short Title of the European Union (Notification of Withdrawal) Bill Is Incorrect

The Short Title of the European Union (Notification of Withdrawal) Bill is incorrect. The notification is not of withdrawal from the EU. As the Long Title and Clause 1(1) of the Bill correctly show, it is a European Union (Notification of Intention to Withdraw) Bill. Article 50(2) of the EU Treaty speaks only of notification of an intention to withdraw. Notification of intention to withdraw affects legal rights and obligations, not inevitably (pace the Supreme Court in Miller), but only contingently, that is to say, if and when withdrawal actually occured, and to the extent determined by the ultimate withdrawal agreement, if there is such an agreement.

The erroneous Short Title of the Bill goes against the Government’s mistaken claim before the Supreme Court that they could have given notification of intention to withdraw under the foreign relations prerogative power, that power admittedly not being a power to change UK law. They certainly know that actual withdrawal from the EU, at some date in the future, would substantially affect legal rights and obligations in the UK. The majority in the Supreme Court might have saved many pages by accepting the simple point that notification of intention to withdraw is a power of the Government already contained in Article 50 itself, and hence contained in UK law.

Philip Allott is Professor Emeritus of International Public Law at Cambridge University and a Fellow of Trinity College Cambridge.

(Suggested citation: P. Allott, ‘The Short Title of the European Union (Notification of Withdrawal) Bill Is Incorrect’, U.K. Const. L. Blog (30th Jan 2017) (available at https://ukconstitutionallaw.org/))

31Comments

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1

Sebastian Payne on January 30, 2017 at 2:43 pm
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That is a very neat point that you make. My understanding of your point is the following : as an EU Treaty provision Article 50 was incorporated into domestic law via the European Communities Act 1972 which constitutes sufficient legal authority for the giving of notice.
I wonder if the qualifying phrase in 50(1) ‘ in accordance with its own constitutional requirements’ also qualifies the force of your argument as it leaves it open to the court to determine the approval or absence of approval that the government needs prior to giving notice.
2

Marty Caine on January 30, 2017 at 2:52 pm
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I do not think that there is anything in the Lisbon Treaty would would mean that once Article 50 is invoked it can be withdrawn, so unless some kind of agreement between the EU and the UK is made within the two years of exit negotiations then providing Article 50 is invoked by the end of March 2017, we will fully Brexit by the end of March 2019.

What is interesting in the Lisbon Treaty and for some reason no one seems to be talking about this, Article 8 clearly states that the EU will create special relationships with its neighbouring European countries.

ARTICLE 8 TEU

1. The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.

2. For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation.
3

Sean Feeney on January 30, 2017 at 4:15 pm
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Is the distinction between the long and short titles intentional, given the majority and minority found Parliamentary authorization is needed for both the Article 50(1) decision and not just, as the majority found the creation of a new statutory power of notification?

See the crucial clarification of the majority’s finding buried at [132] in an introductory clause in a sentence in a passage on the devolution issues:

“In light of our conclusion that a statute is required to authorise the decision to withdraw from the European Union…”

This finding appears to me to be consistent with the dissenting judgment of Lord Reed at [154] (with which Lord Carnwath at [243] and Lord Hughes at [281] expressly concurred).

154. The 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).

It seems to me trivially true that even if a statutory power of notification exists it can only be exercised if an antecedent decision of intention to withdraw has been taken. One cannot, in law, notify a nullity.

The question I am ultimately posing is: can the Bill, if enacted, be construed both as the UK’s decision of an intention to withdraw under Article 50(1) and also the creation of a new statutory power (or rather duty given the former) to notify.
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  Richard Bird on February 15, 2017 at 11:29 pm
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  Your last paragraph is precisely the point. What exactly is the meaning of the Bill? When and by whom was a decision to withdraw made which is compliant with both 50.1 and the SC ruling ? The Lords will debate it on Monday next, and I would expect them to ask what exactly it is they are debating. I have written to several members of the Lords on this and I hope it will be raised.
5

Andrew Duff on January 30, 2017 at 7:32 pm
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Yes, the short title of the Bill is clearly a nonsense. One wonders who now advises the Government on these matters.

But I think Philip Allott is also saying something more interesting: that the UKSC neglected to take into account the full weight and force of EU law. He could be right in (at least) four other respects:-

1. No account was taken of Prime Minister May’s obligations to her EU institution, the European Council (Article 50(1) TEU).

2. No reference was made to the CJEU on the matter of revocability (Article 263 TFEU).

3. There was no substantive consideration of the legacy of the transnational rights of EU citizens (many of them reciprocal), merely a cursory glance.

4. No discussion was entered into the possibility or consequences of the differentiated disintegration of the EU – only the judgment that the UK is not a federal state (which most of us knew anyway).
6

Alan Fenwick on January 31, 2017 at 1:09 am
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Notification under Article 50(2) is a step required to be taken (..”shall notify”..) when a Member State DECIDES to withdraw from the EU as mentioned in Article 50(1). The referendum result wasn’t a decision for this purpose, and the Government lacks the power to take such a decision under the Royal Prerogative.

The biggest failing in the proposed legislation is that it authorises, but does not require, the Prime Minister to give Article 50(2) notification (..”may notify”..), but without crucially making or delegating the Article 50(1) decision upon which the notification must be predicated.

The ‘constitutional requirements’ mentioned in Article 50(1) (which we now know means an Act of Parliament) apply first and foremost to the decision to withdraw from the EU, not to the communication of that decision / intention to the European Council.

Any such decision needs to be expressed in the statute, and cannot be inferred from a mere permission to give an otherwise mandatory notification.
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  Richard Bird on February 15, 2017 at 11:21 pm
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  The absence of any mention of Article 50.1 in the Bill or any other Bill is glaring. The statement made by David Davis in presenting the Bill ( “It is not a Bill 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” ) shows that Parliament is being conned into thinking that the Bill confirms a decision under 50.1 already made by the “people” in the referendum. Yet as I understand it, the Supreme Court has ruled that only Parliament may make such a decision.
  - 8
    
    Richard Bird on February 16, 2017 at 8:42 am
    
    I have to modify the last line of my statement above. The SC only ruled that “an Act of Parliament is required to authorise ministers to give Notice of the [sic] decision of the UK..”. It made no comment on how or by whom such 50.1 decision must be made. The rest of my post is unchanged.
9

Richard Bird on January 31, 2017 at 9:34 am
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As a lay observer, this analysis makes perfect sense. The question is: What will be recorded in the history and law books as the moment that the UK actually ‘decided’ to withdraw from the European Union in accordance with Article 50.1? The media are referring to this Bill as the definitive moment. If that is not so, as is argued here, then pro-Europe campaigners such as myself will be heartened. However, there seem to be contrary schools of thought. Most confusing for the layman!
10

Alberta on January 31, 2017 at 5:56 pm
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The comments say it all!
11

Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association on February 8, 2017 at 7:37 pm
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[…] *Philip Allott: The Short Title of the European Union (Notification of Withdrawal) Bill Is Incorrect […]
12

Alan Fenwick on February 17, 2017 at 10:01 pm
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This is a reply to Richard Bird’s comment dated Feb 16th, modifying his post of the 15th (both printed under my post of Jan 31st).

Richard’s quote is actually taken from the press summary of the Supreme Court’s judgment, but that doesn’t tell the complete story.

Sean Feeney has already cited para 132 of the SC judgment above:
“In light of our conclusion that a statute is required to authorise the decision to withdraw from the European Union…”.

There is a further point. In upholding the judgment of the Divisional Court, the Supreme Court can be taken to have adopted para 16 of their judgment:
“… it is clear that the two provisions [Article 50(1) and Article 50(2)] have to be read together. The notification under Article 50(2) is of a decision under Article 50(1). If the Crown has no prerogative power under the constitutional law of the United Kingdom to give a notice under Article 50(2), then it would appear to follow that under the provisions of Article 50(1) it cannot, on behalf of the United Kingdom, acting solely under its prerogative powers, make a decision to withdraw “in accordance with [the United Kingdom’s] own constitutional requirements.”

Which brings us back to the question when and by whom the Article 50(1) decision was or will be made. It seems a tremendously important decision to be left to implication or inference.
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  Richard Bird on February 25, 2017 at 12:14 pm
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  Thank you for the comments, and the further quotes from the SC ruling. I am grateful. I was wrong to blithely say that the SC ‘made no further comment’. There are are several places where comment can be found such as inferring the point:
  
  121. “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.”
  
  122: “The essential point is that, if, as we consider, what would otherwise be a prerogative act would result in a change in domestic law, the act can only lawfully be carried out with the sanction of primary legislation enacted by the Queen in Parliament.”
  
  However, the DC and the SC were only posed the question: What has to be satisfied in order to issue a notice under 50.2? They were not asked: What has to be done to satisfy 50.1? The answer that might have been given can only be inferred, from reading of this judgment and application of common sense, but it is not a definitive answer. In the absence of a definitive answer, and action in accordance with the answer, Government is once again surely sailing up the creek without the proverbial paddle. The debacle can only end in tears.
14

Sean Feeney on February 20, 2017 at 12:12 pm
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Alan Fenwick seems not to have noticed that the findings of the Divisional Court on the article 50(1) decision seem to be obiter. The lack of clear findings is telling.

See [16] “In our view, nothing really turns on this [the distinction between the article 50(1) and 50(2) decisions]…” and [17] “.However, we agree with the submission of Lord Pannick QC that, whatever the position in relation to any decision under Article 50(1), a decision to give notice under Article 50(2) is certainly the appropriate target for this legal challenge, since it is the giving of notice which triggers the effects under Article 50(2) and (3) leading to the exit of a Member State from the European Union and from the relevant Treaties.”

The real point (which will have been very well understood by every judge in the case, of course) is that the finding by both Courts that there is no UK power to give an article 50(2) notification would leave the UK open to infringement proceedings in the CJEU if an article 50(1) decision to leave the EU has already been taken – on the interpretation of notification as an EU law obligation.
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  Alan Fenwick on February 21, 2017 at 4:20 pm
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  The Divisional Court’s comments on Article 50(1) would be persuasive at any time, but I suggest their words are especially hard to dismiss when the passage comes from the unanimous judgment of a bench that included the Lord Chief Justice, the Master of the Rolls and a senior Appeal Court judge, and the judgment was upheld by the Supreme Court.
  
  Besides, it chimes with the Supreme Court’s own approach: dealing with a challenge appropriately targeted at Article 50(2) (because that’s the step that leads to the effects complained of), but treating the decision and notification provisions together as far as the royal prerogative argument is concerned.
  
  Para 132 of the Supreme Court judgment seems particularly revealing:
  “In light of our conclusion that a statute is required to authorise the decision to withdraw from the European Union, and therefore the giving of Notice…”
  
  The Bill currently before Parliament specifically gives the PM power to give notification under Article 50(2). But where exactly are we to find the Article 50(1) decision that the PM is being empowered to notify? That’s an Article 50(1) decision authorised by statute in accordance with the UK’s constitutional requirements. It’s not enacted or delegated here in the Bill.
16

Sean Feeney on February 22, 2017 at 2:19 pm
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I disagree (whatever the Courts – currently domestic -have so far found), Alan Fenwick, that it is the article 50(2) notification that is consequential and not a member state’s sovereign decision to withdraw.

I agree that the question raised by the Bill is your question: “where exactly are we to find the Article 50(1) decision”.

I do not necessarily agree that “It’s not enacted or delegated here in the Bill.”

Although the Bill is drafted rather oddly if it is supposed to be taking the article 50(1) decision.
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  Richard Bird on February 25, 2017 at 12:19 pm
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  If the Bill is supposed to be taking the Article 50.1 decision, surely a simple preamble such as ‘Whereas the UK has decide to withdraw under Article 50.1…” would have done the job. Either incompetence, or deliberate obfuscation, for some unknown and devious reason. I presume the latter.
18

Sean Feeney on February 22, 2017 at 2:54 pm
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There appear to be two or possibly three arguments (none of which I am advocating especially as the Bill only expressly mentions Artice 50(2) and omits reference to Article 50(1); [132] of Miller seems to cut across these arguments; and the Bill is currently drafted, at least literally, only in terms of a statutory power not a duty to notify – “may” not “shall”).

The first argument is where I began: that, far from being incorrect, the short title is deliberately (everything in this Bill will have been carefully deliberated) distinct from the long title to evince an intention that the UK SHALL withdraw from the EU. Professor Allott fails to note, or at least fails to state, that the heading to clause one (an aid to construction) also significantly omits the word “intention” (a word that appears in article 50(2) but not article 50(1)). Somewhat more opaquely, does the phrase “the United Kingdom’s intention to withdraw from the EU” evince that the UK actually has such an intention.

The second argument might be the Bill, if enacted, somehow revives the prerogative power to umake the EU treaty by an article 50(1) prerogative decision.

The third argument (I find this really opaque, and it appears to be a form of the second argument) is that the Bill, if enacted, somehow gives the 2016 referendum outcome provided for by the 2015 Act legal and not merely political force. This relies on the difficult to understand [124] of the majority’s judgment in Miller which gives a contingent finding that the effect of the referendum is purely political not legal (“unless”):

“…the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation….unless and until acted on by Parliament, its force is political rather than legal…”
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  Richard Bird on February 25, 2017 at 12:21 pm
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  Whichever analysis is right, it’s surely a mess, and a minefield.
20

Alan Fenwick on February 24, 2017 at 7:00 pm
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It’s astonishing that a Bill that was supposed to lay to rest shortcomings in the 2015 Referendum Act, or repair the damage suffered to the Government’s case in the Supreme Court, should be so difficult to fathom.

Article 50 speaks the language of ‘Treaty’ rather than ‘Statute’. It’s not surprising therefore to see the concept of ‘decision’ morph into ‘intention’, without necessarily acquiring a new legal character. The phrase “decide to withdraw” is nonetheless common to both 50(1) and 50(2), and the obligation to notify is either consequent upon a decision to withdraw, or at least contemporaneous with it. The one thing it can’t be is independent of it, or prior to it, because Article 50(2) only applies to “a member state which decides to withdraw”.

The failure of the Bill to mention Article 50(1), and its failure to do more than authorise (rather than require) the PM to notify an intention under Article 50(2), make it hard to discern Parliament’s intention as either adopting or ratifying the referendum result, or making the decision itself, or delegating it to the PM, or leaving the field clear for her to make the decision under the Royal prerogative. The sheer number of possiblities may well rule out any one of them in particular being a necessary implication of the Bill. A counter-argument might run “well one of them must be, and it doesn’t matter which”, but in terms of Parliamentary drafting (which is where we came in) that would be appalling.
21

Sean Feeney on February 28, 2017 at 12:39 pm
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Alan Fenwick, I don’t necessarily agree with your conclusion that the Bill, if enacted in its present form does not “require” the PM to give notification. See the possible arguments advanced above.

The Explanatory Notes to the Bill , which can be an admissible aid to construction, do indeed make it clear that the mischief the Bill is aimed at is the giving notification and expressly “exit from the European Union” and not merely the conferral of a power consequent on an antecedent decision to withdraw.

See eg [11]:

“11 The judgment of 24 January 2017 required the Government to complete an additional (and unexpected) step before the formal process of leaving the European Union can commence. Completing this step through the normal Bill timetable would cause considerable delay to commencing the formal exit process, making it impossible to do so before the end of March 2017. This would further generate uncertainty as to the timetable for our exit from the European Union.”

Click to access 17132en.pdf
22

Sean Feeney on February 28, 2017 at 1:26 pm
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Crossbebencher Lord Hope of Craighead, ex-Deputy President of the Supreme Court, said at second reading in the House of Lords:

“As for the wording of the Bill, its brevity calls to mind remarks made about legislation in a debate initiated by the noble Lord, Lord Butler of Brockwell, a few weeks ago: how good it is to find a Bill which says what it wants to say in as few words as possible; how good it is to have a Bill which does not have a Henry VIII clause—and, as the Explanatory Memorandum points out, there is no sunset clause, either. After all, the sun will scarcely have risen by the time the Bill’s purpose will have been spent…

“If passed, the Act will give the Government all the authority they need to give notification of the UK’s intention to withdraw from the EU under Article 50. That is what the Bill says. However, the notification does no more than start the Article 50 process.”

https://hansard.parliament.uk/lords/2017-02-20/debates/30224DBB-4C77-4D65-A591-699EB7F99981/EuropeanUnion(NotificationOfWithdrawal)Bill
23

Alan Fenwick on February 28, 2017 at 11:44 pm
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Like the Bill itself, the explanatory notes refer to a “power” to notify (e.g. para’s 2, 6, 17, 18, 19).

The explanatory notes emanate from David Davis’s department, so if there is an underlying flaw in the drafting of the Bill, it would not be surprising to see it reflected in the notes.

The notes make no mention of Article 50(1). As policy and legal background, para 3 of the notes refers to the outcome of the referendum, and para 5 refers to Article 50(2) notification as the first step in the procedure for a “member state that HAS DECIDED to withdraw” from the EU.

David Davis’s opening address to the Commons on this Bill is partly quoted in an earlier post above: “It is simply about Parliament empowering the Government to implement a decision already made—a point of no return already passed”.

It was common ground in the legal proceedings that the referendum result was not legally binding, and it would appear from David Davis’s remarks that Parliament isn’t making the decision either. I’m still wondering: who made the decision for the UK to withdraw from the EU, when did they make it, and how did it comply with the UK’s constitutional requirements (Article 50(1))?

The words of Lord Hope reflect the language of the Bill, but do not address its deficiencies. It’s only an authority to notify. In the words of correspondent Sean Feeney, 30th January 2017, above: “…even if a statutory power of notification exists it can only be exercised if an antecedent decision of intention to withdraw has been taken. One cannot, in law, notify a nullity.” I quite agree.
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  Alan Fenwick on March 1, 2017 at 2:29 am
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  The final paragraph above could have been better worded, had I not momentarily lost track of the fact that my post is effectively a reply to Sean Feeney’s latest. What I’m saying Sean is I prefer your initial argument from a month ago, while acknowledging you’ve moved on from it.
25

Alan Fenwick on March 2, 2017 at 11:38 am
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Further thoughts on the Article 50(1) decision (while earlier posts, and any replies, are still awaiting moderation):

I wonder if the Government’s position is this:

1. While the referendum was advisory only, the Article 50(1) decision to withdraw from the EU is the decision taken after the referendum to implement the result, as pledged.

2. Though made under the royal prerogative, that decision to withdraw from the EU operates on the international plane and is untouched by the Supreme Court ruling, since it is only the notification of the decision under Article 50(2) which has the effect of changing domestic law.

3. Accordingly, Parliament is being asked only to authorise the Article 50(2) notification, the Article 50(1) decision having already been validly taken.

My only reservation concerns passages in the Divisional Court and Supreme Court judgments, cited in earlier posts, to the effect that the judges took the decision-making and notification provisions of Article 50 together in their deliberations on use of the royal prerogative, not always drawing a distinction between the two. This is, however, narrower ground.
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Sean Feeney on March 2, 2017 at 5:43 pm
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Thanks for pointing out that [5] of the Explanatory Notes confirm the trite position that an Article 50(1) decision must precede exercise of any statutory power to notify, Alan Fenwick.

My initial position has not changed at all.

I am merely pointing out that it may be possible to construe the Bill, if enacted, as the Article 50(1) decision being taken by Parliament (that seems a more likely construction than the power to decide to withdraw also being conferred, or resurrected under the Royal Prerogative, with the power to notify), whatever Bill promoter David Davis says to the contrary.

It is possible that the Courts could find in any future action tha only exercise of the power to withdraw is consequential to be perverse to me.
- 27
  
  Alan Fenwick on March 3, 2017 at 2:05 pm
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  Sean Feeney, regarding my post of 2nd March, directly above yours. I’m more interested in what you think of explanatory note 4, which appears in the section on policy and legal background, directly between the references to the referendum result and the Article 50(2) notification process:
  
  “On 2 October 2016 the Prime Minister announced that the Government would commence the formal process of leaving the European Union before the end of March 2017.”
  
  There are reasons for doubting its legal efficacy as such, but (rather than looking for implications in the Bill that its promoter says aren’t there) doesn’t note 4 point to the elusive Article 50(1) decision?
28

Sean Feeney on March 6, 2017 at 1:10 pm
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Alan Fenwick, I thibnk it is very clear thatthe Explanatory Notes evidence the fact that the mischief addressed by the Bill is to allow the notification power to be used and not merely conferred. This is also the clear public intention of the Government proposer.

The reason the David Davis is saying the decision has already been taken appears to be to avoid a political debate in Parliament on taking the article 50(1) decision. The proposed amendments also focus on consequential steps after the power has been used.

I think any future litigation may concentrate on the principle of legality rather than the withdrawal decision, as I think the text of the Bill does, does on balance evince an intention that the UK is withdrawing. That must be the basin on which Lord Hope of Craighead, ex-Deputy President of the Supreme Court, reached his conclusion.
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Sean Feeney on March 6, 2017 at 1:32 pm
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I think any probative evidence that Queen in Parliament intends the notification power to be used necessarily entails that the Article 50(1) withdrawal decision has been taken.

The appear to be two possible (non-bizarre) conceptualizations:

1. by enacting the Bill, the Queen in Parliament takes the article 50(1) decision;
2. by taking a statutory step to implement the referendum outcome, the Queen in Parliament gives the referendum outcome legal and not merely political force.

The actual distinction between these two conceptualizations appears to me to be, in reality, sophistry; and the first reason would appear to me to be correct, although the Courts may favour the second conceptualization in any future litigation, following the reasoning of the majority in Miller.

The Courts could also find that enactment of the Bill resurrects the Royal Prerogative to unmake the EU Treaties since that is also consistent with the majority’s somewhat bizarre reasoning in Miller.
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Alan Fenwick on March 6, 2017 at 3:32 pm
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I noticed this passage in Dominic Chambers QC’s submissions for Dos Santos in the Divisional Court (day 1, page 162):

“…Parliament could directly authorise a notification under Article [50].2 before that notification is given. Now, this would, in practice, amount to a ratification by Parliament of a previous decision by the executive, or the people in a referendum to withdraw.”

But I wonder, can this particular Bill about notification ever amount in practice to a ratification of the decision, when its proponent expressly told Parliament the decision is “a decision already made—a point of no return already passed”?

The “Three Knights” opinion makes interesting reading too, insofar as it questions whether a perfected constitutional decision to leave the EU is indeed a prerequisite before a notice of intention to leave may be given.

Oddly enough, it’s a conclusion that’s easier to draw from the French-language version of Article 50, where para 2 [et seq] is expressed as a narrative all in the present tense. It doesn’t necessarily carry any of those apparently mandatory “shalls” (there’s not even a futuristic “will”), and the present tense of “décider” can mean “is deciding” as much as it means “decides”, which may facilitate the otherwise awkward transition in the text from “decision” to “intention”. Just a thought.
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Brian Christopher Jones: The Government’s Quandary: “Great”, or Ordinary, Repeal | UK Constitutional Law Association on March 28, 2017 at 9:01 am
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[…] the title’s inaccuracies. In fact, in a separate Brexit-related measure, Prof Philip Allott demonstrated that the Bill (now Act) to trigger Article 50 was misnamed, as it should have been entitled: […]