UK Constitutional Law Association

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Kenneth Armstrong: Has Article 50 Really Been Triggered?

Cross-posted from brexittime.com.

With the Supreme Court handing down its judgment in Miller v Secretary of State for Exiting the EU on 24 January this year, one might have been forgiven for thinking that the issues around the legality of the triggering of Article 50 had been settled. As we all now know, the Supreme Court decided that Parliament had to give legislative authority for UK ministers lawfully to notify the UK of its intention to withdraw from the EU. The European Union (Notification of Withdrawal) Act 2017 was enacted and the Prime Minister duly wrote President Tusk her Article 50 letter.

But Brexit is the gift that keeps on giving. At least to lawyers.

The calamitous outcome of the Prime Minister’s decision to call an early general election – in the form of a hung Parliament and a minority Conservative government – has given some quarters pause to revisit Article 50 to look for ways to pause or even halt the Brexit process. More dramatically, as reported in the Telegraph it is also being suggested that the Article 50 letter is actually legally devoid of purpose because no formal ‘decision’ to withdraw has been taken.

The argument that Article 50 has been falsely triggered is made by barrister David Wolchover in a recent issue of Counsel magazine. The argument has a certain logic to it.

Article 50(1) TEU states:

Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.

For Wolchover, the notification that is made under Article 50(2) which starts the withdrawal process logically depends upon their being a prior decision to withdraw. Given that the referendum held a year ago was not itself such a decision, it would have to be for some other body to make a formal decision. And given that the Supreme Court in Miller made clear that as the consequence of withdrawal was the loss of a source of rights in UK law which required express statutory authorisation, only Parliament could make such a decision. Wolchover’s claim, then, is that while Parliament may have authorised the notification under Article 50(2) TEU,  the European Union (Notification of Withdrawal) Act 2017 does not expressly enshrine a decision under Article 50(1) to end the UK’s membership of the EU.

It is a clever little argument. It is, however, misguided.

As with Brexit more generally, it is important to have a sense of perspective. Or perhaps more precisely a sense of different legal levels. So, we need to be clear about what domestic law demands and what EU law demands. It is easier to start with the latter.

I have long argued that from an EU law perspective, Article 50(1) is descriptive rather than normative. It describes a state of affairs which EU law presupposes exists at a domestic level, and subsequently lays down procedures for the management of that reality at EU level. In normative terms, at the very most, it identifies in EU law a right which exists under international law to withdraw from a treaty. Rather than leaving it up to the Vienna Convention on the Law of Treaties to regulate, Article 50 TEU for the first time sets out the procedures which the EU will follow. But even in these terms, Article 50(1) is describing rather than prescribing something.

Where EU law comes to life is in terms of the procedures laid down in Articles 50(2)-(5) TEU. In particular, Article 50(2) is quite clear that the Article 50 procedures apply as soon as the European Council is notified of the intention to withdraw. Here, EU law is dealing with the intention to withdraw and not the decision which is – rightly – a matter of domestic law and politics. In this way, all that EU law has to contend with is the Article 50(2) notification and the consequences that then follow in terms of negotiation of a withdrawal agreement and the termination of membership.

As to UK law, what is clear from the Miller judgment is that key exercises of executive power are subject to domestic legal controls. UK law does not need the wording of Article 50(1) TEU to require that such exercises of power are in accordance with domestic constitutional requirements. Indeed, as an aside, when Article 50 was being drafted it was proposed to drop this part of Article 50 as it was suggested that what was or was not in accordance with domestic constitutional requirements was rightly a matter of domestic law. But it would be wrong to read too much into the retention of this language. The Supreme Court in Miller came to the conclusion that it did, not because EU law instructed UK courts to determine the constitutionality of the exercise of executive power, but because that’s just what a UK Supreme Court should do.

In this way, whether or not a formal decision to withdraw has been made (and the lawfulness of that decision) is a question for domestic law. Indeed, it is right to say that the domestic process – the decision, the notification, and acceptance of a future withdrawal agreement – are rightly matters to which ‘constitutional requirements’ attach as a matter of UK constitutional law. If it turns out that there is a legal defect capable of being challenged before a UK court which would suggest that a lawful decision is not in existence then self-evidently that would have domestic political and legal repercussions. But it would have no automatic legal consequences for the processes at EU level which are underway as a consequence of the Article 50(2) notification.

Certainly, it would not be for the European Court of Justice to make a determination of whether a decision had been made in accordance with domestic constitutional requirements. Rightly it would consider that to be a matter of the interpretation of domestic law. If, as a consequence of a UK legal process, it was clear that no such decision existed, then it might be invited to consider the consequences for the exercise of powers by EU institutions. But one might surmise that long before that happened, the politics would have taken over.

So my point is that the relationship between Articles 50(1) and (2) is not that depicted by Wolchover. His mistake is not to see that the provisions operate on different levels and while one has implications for the other, there is no automaticity to their legal articulation.

To further clarify my argument, let’s imagine that prior to the election and when considering the text of the European Union (Notification of Withdrawal) Bill, Parliament had done precisely what Wolchover asked of it, namely, that it made an express statement that a decision had been made to withdraw the UK from the EU and on that basis, the Prime Minister was authorised to give notice under Article 50(2). Imagine further that following the general election, and with a change of heart, it was decided by Parliament that the UK would not withdraw from the EU. A new domestic decision would have been made. And it would make not the slightest difference to the operation of Article 50(2) because – as an EU and not a domestic procedure – some act at EU level would be required: revocation of the notice. Again, as I have argued elsewhere, the UK can revoke its Article 50(2) notification unless and until it is acted upon by the UK finally withdrawing from the EU.

The point to grasp is that while Articles 50(1) and 50(2) clearly relate to one another, they also act independently to one another on different legal levels.

Kenneth Armstrong is Professor of European Law, University of Cambridge.

Kenneth Armstrong’s book Brexit Time: Leaving the EU – Why, How and When? is published by Cambridge University Press this week.

This contribution is cross-posted from brexittime.com which is a companion blog to the Brexit Time book and provides a ‘running commentary’ as the Brexit process evolves over time.

(Suggested citation: K. Armstrong, ‘Has Article 50 Really Been Triggered?’, U.K. Const. L. Blog (14th Jun 2017) (available at https://ukconstitutionallaw.org/))

21 comments on “Kenneth Armstrong: Has Article 50 Really Been Triggered?

  1. Jolyon Maugham
    June 14, 2017

    Elegantly argued and – for what little it’s worth – I agree with almost all of it. Where I stumble is where you say “But it would have no automatic legal consequences for the processes at EU level which are underway as a consequence of the Article 50(2) notification.” The implication (at least as I understand it – you don’t quite go on to state the consequence of a lack of automaticity) is that if a notification is made then, whether that notification is valid or invalid as a matter of domestic law, what you describe as “the processes at EU level which are underway as a consequence of the Article 50(2) notification” continue.

    If that is what you mean, I don’t think it can be right. To use an example I gave over breakfast this morning, if John Redwood had written to the Council five years ago saying we were withdrawing from the EU, that would plainly not have triggered the EU law processes you describe. If you accept that proposition, it follows that there must be some precondition for EU law to (to use your phrase) “come to life”. I agree with you it’s a domestic law precondition but I doubt it can be irrelevant as a matter of EU law whether it’s satisfied.

    That’s not quite the same as saying I think the argument is right. I wrote up the argument on the day the then Bill was published here (https://waitingfortax.com/2017/01/26/does-the-governments-brexit-bill-work/) but didn’t then take it any further because I found it difficult to imagine that a UK court would then have found it possible (language I use deliberately) to say that the Bill was flawed. And there is, of course, a very good argument that the Bill itself – although purporting only to notify – implicitly makes the decision. But I’m not so sure that the impossibility I thought existed back in January continues to exist now. And that’s what’s making me (at any rate) interested in the point all over again.

  2. Paul W
    June 14, 2017

    The question of how a decision relating to Article 50 was or should be taken was given little airtime in the Miller case. The Attorney General suggested in the High Court (Day 2 pp59-60) that the decision was taken in a series of steps relating to the Conservative manifesto, culminating in two proclamations in the street outside No 10 by, first, David Cameron and then Theresa May, that Brexit meant Brexit. Had the Government succeeded in Miller, that would have been the sum total of decision-making by the Government.

    The conventional manner in which the Crown would make a treaty-related decision would be by way of a meeting of the Privy Council, with a subsequent Order in Council. If alternatively decisions are to be made by Crown proclamation, Bacon’s Abridgement (referred to in the Miller case) stated that proclamations required the Great Seal to be valid. Neither of these formalities was followed for Article 50, despite the importance both of the decision and of knowing precisely when and how it was taken.

    The Miller case held that Parliamentary approval was required. As I commented in January on Jeff King’s CLA blog, the actual legislation was a curiosity of drafting, oddly referring to the Prime Minister rather than the Crown, and, instead of authorising the Crown to make a decision, it authorised the PM to give a notification under Article 50(2). Under Article 50 the trigger is the decision referred in 50(1), not the notification referred to in 50(2). The latter is simply an administrative obligation on the UK once the decision is taken, and was already part of UK law, not requiring further legislation.

    So still there remains an open question as to how the Crown should formally make decisions of this importance and, in fact, did make the Brexit decision. The A-G’s suggestion that decisions can be made by a combination of political statements and confirmed by oral remarks of the Prime Minister of the day is highly unsatisfactory and could lead to uncertainty as to whether remarks by ministers were binding or not.

    That said, given the level and volume of debate during the passage of the Brexit Bill, practically any words could have been used since there could have been no doubt as to what the Parliament’s intention was in passing the legislation.

    • Jolyon Maugham
      June 14, 2017

      Mmmm. It’s a bit more complex than that… Here’s what David Davis told Parliament (https://t.co/mGsW0j3Q4v):

      The Bill responds directly to the Supreme Court judgment of 24 January, and seeks to honour the commitment the Government gave to respect the outcome of the referendum held on 23 June 2016. 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. We asked the people of the UK whether they wanted to leave the European Union, and they decided they did. At the core of this Bill lies a very simple question: do we trust the people or not? The democratic mandate is clear: the electorate voted for a Government to give them a referendum. Parliament voted to hold the referendum, the people voted in that referendum, and we are now honouring the result of that referendum, as we said we would.

  3. Andrew Haslam-Jones
    June 14, 2017

    As a small contribution, it is clear from the opening sentence of the letter sent by the Prime Minister on 29 March 2017 to Donald Tusk, the President of the Council, that she regarded the outcome of the 23 June 2016 referendum as “the decision”. Politically, I can see the irresistable temptation to promote the position that the outcome of the referendum was “the decision”. Legally, however, for the reasons stated above by Paul W, that cannot be so, with all the consequences set out above by Jolyon Maugham.

  4. Robin Levett
    June 14, 2017

    @Paul W:

    You say that:

    given the level and volume of debate during the passage of the Brexit Bill, practically any words could have been used since there could have been no doubt as to what the Parliament’s intention was in passing the legislation.

    But surely there’s a problem with that assumption; namely that the sponsor of the Bill, David Davis, was at pains in the debates in Parliament to point out that Parliament was *not* being asked to decide to exit the EU. That decision, he told Parliament (in ignorance or defiance of Miller), had already been taken. The Bill, he said “…is simply about Parliament empowering the government to implement a decision already made – a point of no return already passed.”

    • Paul W
      June 16, 2017

      Thank you. Let me clarify: I wasn’t suggesting that Parliament was making the Article 50 decision; it was – by whatever words it cared to use – authorising the Crown to make it. Likewise of course the referendum wasn’t the decision, given that it was advisory (as affirmed by the Government itself, Hansard 16/6/15 col 231). So, pace David Davis, one is still looking for the decision. But given the passing of the Act and the sending of the notification letter, and with cabinet meetings held in between to discuss the notice, the Crown’s decision must be somewhere in there, in effect either taken or reconfirmed in that period. It’s still unsatisfactory process.

      • Nunn The Wiser
        June 19, 2017

        Any decent – and motivated – lawyer would rip it to shreds!

        But, that’s “Democracy” – as we call this present twisted and deliberately distorted state of affairs.

      • Nunn The Wiser
        June 30, 2017

        Paul W: Your comment, 16th. June: “…the Crown’s decision must be somewhere in there” is, I think, a relevant one.

        Decision by suggestion(s) – and a number of related remarks uttered on the doorstep of No.10. – seems to be a particularly obscure – and some might say deliberate – way of avoiding the process of actually obtaining an irrefutable Crown decision.

        In a situation where clarity is clearly required, does the absence of an unambiguous Crown decision invalidate the supposition that that decision has in fact been legally made – irrespective of the fact that several actions have subsequently been made predicated on that assumption?

    • Nunn The Wiser
      June 18, 2017

      David Davis is as guilty as all other Tories in misrepresenting facts to suit his (and the Tory Party’s) Brexit ideology!

      If we were to have a forensic study of the whole Referendum process – from the deliberately misleading lies to the deliberate misinterpretations of Tory Ministers – and the current Prime Minister – we would probably unearth a whole host of unacceptable processes going on that today pass for “acceptable Government”.

      But that isn’t going to happen. Is it!

  5. Nunn The Wiser
    June 14, 2017

    “As with Brexit more generally, it is important to have a sense of perspective.”

    If a sense of perspective is to be applied then perhaps we should take a very detailed look at the legality of certain Government Ministers’ deliberate lying, misleading and misrepresentative comments in the run-up to the Referendum vote.

    These comments were made with the sole intention of garnering pro-Brexit votes without which it is conceivable that the wafer-thin pro-Brexit majority obtained may not have been achieved at all.

    Or, alternatively, it is time to admit openly – so that the U.K. electorate knows exactly where it stands – that it is absolutely permitted for Government Ministers to lie, deliberately or “otherwise”, and to not have to face any form of upbraiding whatsoever for so doing.

    It has got to be one or the other.

    If the former then a new Referendum should be carried-out! If the pro-Brexit side wins the (legitimate) argument then Brexit should proceed. Should the Remain side win then proceedings should be reversed immediately. A great service to the nation will have been carried-out!

    If bare-faced lying, misleading advertising and false impressions are the acceptable order of the day, I suspect the U.K. electorate may have something to say about that!

    Which is quite possibly why we will hear nothing further on this issue!

    • Peter Rumsby
      July 19, 2017

      Of course the remain side were scrupulously honest in all their missives, politicians have always been economical with the truth. The public make their choice on information gathered, with the internet it is easier to find facts rather than be fed misinformation by vested interests.

      • Nunn The Wiser
        August 14, 2017

        “…with the internet it is easier to find facts rather than be fed misinformation by vested interests.”

        Nice try! So that fully justifies the Referendum process in your view?

        You may be aware that it is STILL not possible, more than a year after the event, to know for certain what measures the Government intends to take regarding the Brexit process. Even the E.U. – with whom they are currently supposed to be negotiating – do not know these details! I’m sure they would have looked them up on the internet if, as you suggest, they were available there!

        At the time of the Referendum, a huge number of relevant facts were unknown. Others were distorted and in some cases padded-out with downright lies. This is the basis upon which the Referendum “decision” (actually “advice”) was taken (given)!

        It is unforgivable to propose that this deceitful basis and an uninformed internet were acceptable ways of informing the electorate of all the relevant facts about leaving the E.U. upon which a decision (advice) was meant to be based.

        The Referendum process was a disgrace and should be declared unfit for purpose. A second Referendum should be held – this time without lies and deception – and with full knowledge of the facts being openly available BEFORE any decisions are made by the electorate.

        I can understand why some people might find that recommendation works against their own interests, and why they insist that a highly unsatisfactory process should be allowed to proceed without scrutiny or amendment.

        In the interests of real Democracy such demands should be ignored. If a fully-informed second Referendum returns the same results as the first Referendum did then by all means proceed with Brexit.

  6. Alex
    June 15, 2017

    The purpose of Article 50 was to make clear (not that this was required), that EU Member States remain sovereign. This could be argued to be a rare exception to the principle that EU law has supremacy over UK law (which even then only results because the UK passed specific legislation to that effect).

    Art 50 (1) effectively states that the decision to withdraw is a matter of domestic law.

    Art 50 (2) requires notice to be given and then EU law applies to the process of exit.

    What is not clear to me at least, is that nowhere is there a formal legal decision to withdraw. The referendum was not legally binding and the notification act is silent on the actual decision. Why?

    If a decision has been made, then the notification is valid. But why for such a significant step is that decision not public? This seems to be a deliberate step by the then UK Government but why?

    If the decision has not been made or a decision made is later overturned or superseded under domestic law, then presumably that would respectively invalidate or permit revocation of the original notice because the notice only flows from the domestic decision (that must I think be right, given the purpose of article 50 on the overarching sovereignty principle).

    Is the idea that if the PM made the decision to withdraw, then the PM can also unilaterally overturn that decision and revoke the notice? A get out of jail free card perhaps?

    It seems a fair question to ask about whether a decision has been made because why should the UK and the EU spend time and resources (and on both sides UK taxpayer contributions are being spent on this) on negotiating an exit if the decision has not been made?

  7. Pingback: What Constitutions Endure | Verfassungsblog

  8. mark hardy
    June 17, 2017

    Seems to me that the difficulty is readily addressed by suitable wording in the Great Repeal Bill (or whatever) as “By this Act it is decided that the United Kingdom shall leave the EU and as a consequence …..”. But addressed it will have to be as otherwise someone is going to raise the point in Parliament in about 15 months time and there is going to be a lot of egg flying around and some will surely stick.

    • Nunn The Wiser
      June 19, 2017

      Any Government wording that states: “By this Act it is decided…” undermines the very democracy which we are supposed to live under in the U.K.

      Law by decree – which nowadays seems to be limited to a small Parliamentary majority (however hastily cobbled-together and short-lived) – opens the way for all manner of abuse of Parliamentary procedures.

      There are many constitutionally-acceptable methods of reaching agreement on Parliamentary issues of the day. I don’t believe this would be one of them.

      • mark hardy
        June 22, 2017

        In a Representative Democracy it is for the members of Parliament to decide matters (as forcefully stated in Miller) and therefore such wording cannot be considered law by decree.

        The trouble is the Party system and the whips that ensure no MP’s exercise the independence of mind that Burke considered so essential.

        The present justification being bandied around that “over 80% of the voters” voted for a Party that wants a hard Brexit is so much claptrap.

        Someone is going to have to run this up through the Court system again.

      • Nunn The Wiser
        June 23, 2017

        “The present justification being bandied around that “over 80% of the voters” voted for a Party that wants a hard Brexit is so much claptrap.

        Someone is going to have to run this up through the Court system again.”

        I FULLY AGREE!!!

        In exactly the same way that the European Parliament is FORENSICALLY DISSEMINATING every word and nuance of Theresa May’s “generous offer” regarding E.U. citizens’ citizenship of the U.K. following Brexit, so must Parliament disseminate every pronouncement from the Tawdry Party, which seeks to wring-out any possible re-interpretation of events in a way that, they wrongly and knowingly claim, supports their own – and NOT the nation’s – political agenda.

        They are continuing to deliberately mislead the U.K. population for their own Party aims.

        Until a law is passed which ALLOWS deliberate lies by Government, this process must be seized upon and halted – IN THE TRUE NAME OF DEMOCRACY!

        But – as usual – the powers that be have no interest whatsoever in limiting themselves by such regulations.

        I think we have our real answer: SCREW DEMOCRACY!

  9. I have read the opinions of David Wolchover, Kenneth Armstrong, and Julian Maugham.

    I think Mrs May could have serious problems with regard to the validity of her Article 50 Notice letter.

    Her opening sentence reads “On 23rd June last year the people of the UK voted to leave the European Union.” So that appears to be, as she saw it, the source decision.

    She goes on to say that “the UK Parliament confirmed the result of the referendum by voting with clear and convincing majorities in both of its houses for the European Union (Notification of Withdrawal) Bill”. That bill became an act on 16 March 2017.

    The Act did not “confirm the result of the referedum”, certainly not explicitly. The title of the act is clear and the short heading states “Power to notify withdrawal from the EU”. Being given “power” does not impose or imply an obligation or, I would have thought, contain any implication.

    The Act contains only two sentences, the first of which says “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”. It says she “may” notify. It does not say “shall”….again no obligation.

    The referendum was advisory only. No one seems to dispute that. So, the referendum result could not constitute a legal decision to leave.

    In my view, the Act does not do that either.

    So, one is left with the argument that the decision to leave the EU has to be implied…… but from what?

    On another point, Kenneth Armstrong expresses the view that the Notice can be withdrawn anyway. I agree, but what about expiry of the two-year period with no deal and no extension?

    David Hutchins

  10. paulobrennan
    June 28, 2017

    Professor Armstrong, your argument appears to stand or fall with your proposition that Article 50(1) “is descriptive rather than normative”. You say that you have argued this for a number of years. For those of us unfamiliar with your back catalogue, please could you explain the basis for this assertion and your grounds for believing that CJEU will agree with you. The impact of the decision, if in fact there has been one, on the EU generally and on many, many EU citizens, whether or not they are also UK citizens, is substantial indeed, and it would be suprising indeed if the CJEU was not interested in seeing evidence that a decision has in fact been made, and confirmation from the national court that any such decision has in fact been made in accordance with the UK’s constitutional requirements. It is by no means self-evident that the UK would be able to satisfy the CJEU on these fronts..

  11. Anna Thew
    July 21, 2017

    If the Brexit vote were found to have been procured by fraudulent means or by making reckless misstatements, would this not render the Leave vote null and void? Surely if evidence is already emerging of connivance, funding discrepancies, finding and using loopholes in electoral law and in my view most importantly using the anonymous transfer of exceedingly costly data (the services procured to produce the electronic data having been bank rolled by say, Breitbart, Murdoch, Bannon, the Russians, the Saudis as a straight investment proposition to gain control of UK markets, arms, energy, fracking rights, media and advertising, gaming, mass entertainment etc etc), surely the receipts and use of such and the non declaration of the source and value thereof (which in themselves would or should render the referendum subject to suspicion if not invalid. Surely such a deceit and concealment to gain an unfair advantage of power, position, control over the British public purse and trading rights, of this enormity invokes not just domestic law bur criminal law under the 2006 Fraud Act and under European and international law, covering such illegal transfers of valuable data to gain pecuniary advantage and control over another jurisdiction. We have to know that there is something wrong if Brexit is causing such a loss to so many British AND European citizens, businesses and cultural concerns. If we are suffering such immense injury, someone, some concern, some interest somewhere in Britain or in the world is profiting from that loss. Have those who bank rolled Brexit made a gain for instance ? There has to be cyber fraudulence on an unprecedented scale, or utter recklessness of those entrusted with the public good. The manyra of the democratic will of the people is flawed. What if the will, or desire is to kill or eliminate your neighbour? Surely this is criminal. Look back at how Hitler and Mussolini and Erdogan unscrupulous ideologues came to power. Was this not a democratic will of the people, or control by manipulation? I am an artist and filmmaker. I have no legal training. However to run into the deep complexities of untried British and European constitutional rules and laws would see to me to be not seeing the wood for the trees. We know there was unprecedented dishonesty. We know there were false promises with intend to mislead. We know there was incitement to fear and racial and religious hatred. We know that there is a catastrophic loss. So the task as I see it, however difficult to penetrate is to uncover the source if the transfers of valuable campaign and advertising data, the dark money via EU Leave, VoteLeave
    and the DUP, but most importantly WHO those powerful off shore interests are. This is a task gor the
    Serious Fraud Office, OLAF
    And the FBI.

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