Constitutional Law Group February 2, 2017 Europe, European Union, UK government, UK Parliament

Philip Allott: Taking Stock of the Legal Fallout from the EU (Notification of Withdrawal) Act 2017

Some of the accumulated noxious legal dust will now settle with the enacting of the grossly mistitled EU (Notification of Withdrawal) Act 2017. We may have witnessed our first post-legal legal event. Populist law. If many people say a legally incorrect thing many times, it may come to be treated as if it were correct. Alternative law.

It may be worth putting on the record, here and now, that the proceedings in the courts and the legislation would not have been necessary, if the Government had advised itself correctly on four matters.

(1) The Government already had the legal power and a legal obligation under UK law to notify the EU, following a (political) decision to withdraw. That is the effect of Article 50 itself – “may decide” and “shall notify”. Article 50 is part of UK law by virtue of the European Communities Act 1972. Discussion of prerogative powers in UK law was irrelevant. Revival of the hoary myth of ‘the sovereignty of Parliament’ need not have happened. (Parliament has a legislative supremacy shared with institutions of the EU.) Arcane judicial consideration of the 1972 Act could have been avoided.

(2) Notification of an intention to withdraw is not the same thing as a notification of withdrawal. The latter is a unilateral right of parties to many treaties, including the NATO Treaty, the European Human Rights Convention, or the Paris Climate Change Treaty. Withdrawal from the EU Treaty would have enormous effects on the other member states, and on the parties to hundreds of EU trade agreements with non-member states. It is, therefore, an intensely multilateral and consensual right of withdrawal, as the drafting of Article 50 makes clear.

(3) The European Court of Justice would almost certainly decide that the two-year period mentioned in Article 50(3) does not apply in the case of the United Kingdom. The Court would refer to the terms of Article 31 of the Vienna Convention on the Law of Treaties concerning the interpretation of treaties. The “object and purpose” of the EU Treaty provision is to deal with a recalcitrant or defaulting member state. The withdrawal of a member state such as the United Kingdom without a withdrawal agreement would lead to a tsunami of legal chaos and legal consequences. The mere fact of the continuation of the negotiation of a UK withdrawal agreement would nullify the two-year provision.

(4) The European Court would almost certainly decide that a notification of intention to withdraw can be withdrawn. Article 50 does not preclude it. For example, the (political) decision to withdraw might be negated by a further referendum or a general election.

It should also be noted that, in normal circumstances, the Supreme Court would have regarded itself as obliged, under Article 267 of the EU Treaty, to seek preliminary rulings from the European Court on points (3) and (4), before deciding that mere notification of an intention to withdraw would alter legal rights and obligations in the UK, giving rise to the necessity of legislation.

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

(Suggested citation: P. Allott, ‘Taking Stock of the Legal Fallout from the EU (Notification of Withdrawal) Act 2017’, U.K. Const. L. Blog (2nd Feb 2017) (available at https://ukconstitutionallaw.org/))

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1

Mike Fearon on February 2, 2017 at 12:57 pm
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Phillip Allott talks more sense than anyone in this debate. I don’t believe the judicial involvement here has in any way enhanced the views of the general public about the importance (which should never be denied) of the rule of law, and the citizens’ rights to challenge the government. The blame for that does not lie with the courts, but as Professor Allott indicates, with the politicians. They have not proven themselves to be capable of, or perhaps to have the appetite for, an adequate scrutiny of the work of their legal advisors. The advisors also are at fault for a failure to challenge the judiciability of the issue on the grounds here outlined. The result is that there is likely to be a public perception of an expensive charade achieving nothing.

Having said that, there is perhaps a very basic political reality which should not be ignored. Parliament was not ready to approve the giving of notice, (whether it was a notice of withdrawal or a notice of intention to withdraw was of little political import) until the politicians had adequate opportunity to chew and digest some unpalatable fat. The government was not ready to rush into the notification until the digestive process was largely completed. There may well have been a need, absent the court action, for a parliamentary process to clarify that the UK had made the decision, as in 50 (1) and that the government was therefore obliged to notify under 50(2). As the politicians were not ready for that, it may have been politically astute for the government and its advisors to conduct themselves in this inadequate legal fashion, and for the court action to run its ruminatory course while the fat was rendered digestible. Given the context of the overall timetable for, and administrative costs of, departure, the ultimate irrelevancy of the courts may not seem of any significance in the longer term.

To turn to the implications for constitutional law, if the involvement of the courts has demonstrated one thing, it is that the law cannot be a matter of absolute certainty where significant political issues are involved. The Supreme Court could have decided differently, and some Lords thought that it should. It was perhaps predictable that the Lords would err on the side of caution in upholding the status quo in relation to the supremacy of long established political processes. The challenge of reviewing and modernising those processes was not best undertaken inn the light of a highly sensitive issue such as this.
2

Sean Feeney on February 2, 2017 at 2:11 pm
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It is sufficient to note that in a Supreme Court of 11, the majority of 8 in Miller was more than sufficient (being greater than 6) to declare not “Populist law” but settled law, at least until – if ever – any of the issues in Miller are revisited by the Supreme Court and reversed.
3

Sean Feeney on February 2, 2017 at 2:28 pm
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Professor Allott simply fails to acknowledge (like Professor Endicott) that the second of the conceptual bases on which the claimants succeeded was independent of the alteration of rights and obligations.

The majority in Miller held at [68] (see also [62]) with express reference to multiple authorities: “The 1972 Act effectively operates as a partial transfer of law-making powers, or an assignment of legislative competences, by Parliament to the EU law-making institutions (so long as Parliament wills it), rather than a statutory delegation of the power to make ancillary regulations – even under a so-called Henry the Eighth clause, as explained in the Public Law Project case, cited above, paras 25 and 26…”
4

Paul W on February 2, 2017 at 2:48 pm
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Some comments on Professor Allott’s propositions.

1. Article 50(1) states ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.’ So, yes, the UK has legal power to withdraw and this is part of UK domestic law. But Article 50(1) says that the decision by a member state to leave is to be made ‘in accordance with its own constitutional requirements’. This puts the question of our constitutional requirements squarely back to the UK domestic courts.

Professor Allott seems to imply that, because Article 50 is part of domestic law, no further constitutional requirement needs to be met. That would make the words ‘in accordance with its own constitutional requirements’ entirely redundant. It would be a most surprising result, especially for member states with written constitutions. This argument was made and dismissed in Miller in respect of the European Union Amendment Act 2008 implementing the Lisbon Treaty.

2. The Government did get advice that an Article 50 notice could be withdrawn. The 11th Report of the House of Lords Select Committee on Europe said:

“We asked our witnesses whether it was possible to reverse a decision to withdraw. Both agreed that a Member State could legally reverse a decision to withdraw from the EU at any point before the date on which the withdrawal agreement took effect.”

In fact, that summary was a misleading gloss on the evidence actually given, which was referring to revocation by consent, not unilateral revocation.

3. In Miller the Attorney-General elegantly articulated (p8, day 2, in the High Court) why revocability was not key to the constitutional argument:
“We do not in any event accept that this question [revocability] is central to the arguments before the court; if the claimants are right that the use of the prerogative to notify under Article 50(2) is unlawful, either by virtue of a common law principle or by implication from the 1972 Act, then an act of the executive seeking to do so would still be unlawful, even if Parliament was able to step in and stop the process.”

For that reason, it was not necessary for the Supreme Court to refer the question of revocability to the ECJ.

4. The UK does indeed have, under UK law, an existing legal obligation under Article 50(2) to notify. For that reason, the current Bill going through Parliament is mis-targeted. The Government needs no further authorisation to notify, once a constitutionally valid decision to withdraw has been taken. The Bill should reflect Article 50(1) not Article 50(2), to ensure that the decision, not the notification, is constitutionally valid.

5. I query whether the ECJ would refer to the Vienna convention as to the meaning of Article 50. Others can give chapter and verse, but my understanding is that the ECJ construes the EU treaties as a complete body of law, without reference to external conventions.

6. The ‘object and purpose’ of the two-year time limit in Article 50(3) is not to ‘deal with a recalcitrant or defaulting member state’. First, Article 50 is a mechanism for divorce without breach of treaty, so no default is involved. Secondly, the drop-dead date is simply there in case no agreement can be reached despite even the very best efforts of the parties. No party has to be recalcitrant.

7. Nothing turns on the use of the word ‘intention’ in the first sentence of Article 5o(2). Article 50(3) states that the drop-dead date occurs ‘two years after the notification referred to in paragraph 2’. That references an event, not an intention or a decision. Once the notification is given, it is a bell that has been rung. It cannot be unrung.

Thus, under Article 50(3) it is irrelevant whether the departing member state purports to withdraw its notice. The clock carries on ticking. This is not an absurd result. It is the same mechanism as would apply to terminating a lease or exercising an option. And the argument is supported by the requirement in Article 50(3) for unanimous consent of other member states to any extension of the two-year period.

8. Article 50 is therefore not drafted as ‘an intensely multilateral and consensual right of withdrawal’. It is a unilateral one, with irrevocable consequences. If the UK were to seek to revoke its notice, it would be up to other member states to decide if they agreed. Very likely they would agree but potentially at a price, such as loss of existing opt-outs. This in fact was the advice given by Sir David Edward in his evidence to the Lords committee, but glossed as above.
- 5
  
  Yvonne M on February 8, 2017 at 9:46 am
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  your argument’s supported by the International Law Comission: notification’s a unilateral act that cannot be undone unilaterally
6

Marty Caine on February 2, 2017 at 10:23 pm
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As far as I am aware the Vienna Convention does not apply to the EU because the EU happens to be an international organisation. This is why in 1983 they set about extending the Vienna Convention (VCLT) with the VCLTIO (No prizes for guessing what the IO stands for). Unfortunately at this moment in time the VCLTIO has not been ratified as it is still awaiting at least three signatures and as such it is not yet in power.

Click to access 1_2_1986.pdf
7

Philip Allott on February 4, 2017 at 7:43 am
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It might be useful if I added a couple of clarifications to numbered paragraph(1) of my blog of 2 February. It would then read:
(1) Acting as the agent of the UK member state, the Government already had the legal power and a legal obligation under UK law to notify the EU, following a (political) decision to withdraw. That is the effect of Article 50 itself – “may decide” and “shall notify”. Article 50 is part of UK law by virtue of the European Communities Act 1972. The Government acts in that capacity under countless provisions of EU law. Discussion of prerogative powers in UK law was irrelevant. Arcane judicial consideration of the 1972 Act could have been avoided. Revival of the hoary myth of ‘the sovereignty of Parliament’ need not have happened. (Parliament has a legislative supremacy shared with institutions of the EU.) The non-legislative involvement of Parliament in giving effect to the (political) decision to withdraw is a matter of UK constitutional conventions.
8

Trump, Taricco, Turks and Tusk | Verfassungsblog on February 4, 2017 at 3:15 pm
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[…] ALLOTT raises his eyebrows about what he calls "our first post-legal legal event": the "grossly mistitled EU (Notification of Withdrawal) Act […]
9

Sean Feeney on February 6, 2017 at 1:04 pm
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I don’t think, whatever the majority in the Supreme Court may have decided (it may not be clear), that a political decision by the UK to withdraw from the EU (an article 50(1) decision) is not also a decision with legal effect.

The majority failed to express their findings in expressly terms of Article 50(1) and article 50(2) decisions, unlike the minority who found, correctly, that an article 50(1) decision must precede the article 50(2) decision to notify

Professor Allott’s correction is premised on a legally effective article 50(1) decision having been taken by the UK; this is necessarily so to create the obligation of notification under article 50(2).

Professor Allott gives no analysis on who has taken the UK’s purported decision under article 50(1).
10

Sean Feeney on February 6, 2017 at 1:19 pm
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Professor Allott also misstates the relevant legal principle as “Parliament has a legislative supremacy shared with institutions of the EU”.

The effect of the majority’s correct finding in Miller that legislative power has been transferred to the EU institutions and of section 3(1) of the 1972 Act that any “question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court)” is that the UK Parliament has transferred its legislative supremacy to the EU institutions including the CJEU until the UK leaves the EU and the Queen in Parliament repeals the 1972 Act.
11

Andrew Duff on February 11, 2017 at 9:23 am
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Philip Allott is mentioned in dispatches in my latest article on Brexit, found here:

Click to access pub_7417_brexitlauncharticle50.pdf