Constitutional Law Group June 26, 2018 Europe, European Union, Judicial review, UK government

Robert Craig: New Article 50 Case Resoundingly Rejected by the Divisional Court

In the film ‘Gladiator’ an epic and brutal battle scene at the beginning is followed by the Emperor’s pampered and rich son arriving the next day in a coach. He jumps out brandishing his sword and shouting “where is the battle” in front of the weary troops.

Readers will remember that the original legal battle over Article 50 took place over a year ago culminating in the Supreme Court decision in Miller that was started by King, Barber and Hickman on this very blog. Many readers may be unaware, however, that a handful of later cases, mostly brought by litigants-in-person, have attempted to challenge the notification of the UK’s intention to withdraw from the EU sent by the Prime Minister in March 2017. All of these cases, to date, have been resoundingly rejected by the courts as variously ‘unarguable’, ‘nonsense’ and ‘hopeless’, not least for reasons of delay.

The most recent example is R (Webster) v Secretary of State for Exiting the EU. The core claim is that the notification was unlawful because there was no formal, identifiable legal “decision” before notification. Webster was started an incredible nine months after the allegedly unlawful notification. Furthermore, if the case were ultimately to be successful, it could cause extraordinary disruption given the delicate state of the negotiations with the EU. This formed a separate potential ground for refusing permission even if Webster had been brought promptly or in any event within three months, as the law requires.

Webster was rejected on the papers by Supperstone J as ‘unarguable’. This was followed by a long-delayed oral permission hearing that was heard by a Divisional Court comprising Gross LJ and Green J on 12 June 2018. They rejected the application in barely four pages as “Totally Without Merit” [10] and then awarded costs on the spot for Counsel for the Government (£1500). The judge put it succinctly: “Put bluntly, the debate which the claimant seeks to promote belongs firmly in the political arena, not the courts” [24].

The Webster campaign has raised, via crowd-funding, an absolutely astonishing £190,000. With such unbelievable amounts of money to burn in this litigation, permission to appeal has unsurprisingly been sought from the Court of Appeal already and, no doubt, a further attempted appeal to the Supreme Court cannot be entirely ruled out.

The Webster campaign has been marked by a considerable, and disappointing, lack of transparency. The claimant’s skeleton argument and other documentation are still not available online. This unfortunately means the thousands of hoping-against-hope, mostly ordinary, Remainer financiers cannot read the detailed arguments themselves before deciding whether to commit yet more of their hard-earned money to the campaign.

Most surprisingly, the claimant did not even seek interim relief, which one would have thought would be the bare minimum remedy if the Article 50 notification is “unlawful and ultra vires” (which the claimant must necessarily believe, as the judge pointed out [20]).

Allocation of constitutional functions

This post aims to address a minor, but hopefully interesting, point of constitutional law that was raised in Gross LJ’s judgment handed down on 20 June 2018, relating to the allocation of responsibility for dealing with foreign relations in the UK constitution. This important issue was also discussed recently by Vernon Bogdanor when he described the idea that Parliament could direct the Government’s negotiating positions as a “constitutional absurdity”. A thoughtful and careful partial dissent from that view was recently published by Alison Young on this blog.

The orthodox view is that responsibility for international treaties, negotiations and foreign affairs rests solely with the executive. This is normally exercised by the government using the royal prerogative. Miller held that the government could not use the prerogative to trigger a notification under Article 50 because, inter alia, the executive would be using a prerogative to frustrate the intention of parliament as expressed in the European Communities Act 1972 (‘ECA’) as well as other statutes [51]. The Supreme Court held that ‘a very brief’ Act of Parliament would be all that was needed to confer the necessary legal basis for the government to trigger exit from the EU [122].

Article 50 states, in part:

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
A Member State which decides to withdraw shall notify the European Council of its intention.

Direct effect

The claimant in Webster focused heavily on the word “decide” in Article 50(1). The argument, in effect, was that Article 50 required a formal legal decision to be made that was identifiably separate from the notification. EU law experts may raise something of an eyebrow at this point given Article 50 does not confer any rights domestically and thus does not have direct effect. Furthermore, as Ken Armstrong has pointed out, Article 50 is “descriptive rather than normative”.

The claimants’ argument is even more surprising in the light of the fact that the Supreme Court in Miller held that Article 50 could not have direct effect by conferring a power on the executive to trigger Article 50 through s 2(1) ECA [79]. Since the Supreme Court expressly rejected the claim that Article 50 had any direct effect at all, the claim that a formal, “legal” decision is required in domestic law by Article 50 is not persuasive.

In the event, the Divisional Court refused to decide on this basis [18], even though the direct effect point was a further knock-down argument against the claimant. Instead, the focus was solely on domestic law. This was fair enough given how “totally without merit” the claimant’s arguments were without even needing to raise this point.

What are the “constitutional requirements” of UK law?

Gross LJ dealt with this issue directly. He stated that the European Union (Notification of Withdrawal) Act 2017 (“EUNoWA”) gave

authorisation to the Prime Minister to notify under Article 50(2) [and] plainly contemplated and encompassed the power to take a decision to withdraw and conferred that power expressly on the Prime Minister. [13]

Gross LJ went on to say:

The Prime Minister’s letter itself contains a decision; backed by the authority of the 2017 Act, that decision complies with the requirements of Miller. No additional UK constitutional requirements remained to be satisfied. I reject the argument that additional formality was required under the UK constitution or that there was any requirement for the Art.50(1) decision to be in some separate document from the Art.50(2) notification. [15]

Crucially for this post, Gross LJ has helpfully closed a lacuna that was arguably left slightly open in Miller. That lacuna was who is responsible for dealing with the Article 50 process. The answer, it is submitted, is the executive and specifically the Prime Minister. It has been suggested by other commentators that final responsibility rested with Parliament. This judgment puts to rest that erroneous view. As Gavin Phillipson points out, Miller was about vires. The question was whether the executive had the power to trigger Article 50 using the prerogative. When the Supreme Court said it did not, legislation was needed to authorise the executive to notify under Article 50. The power was conferred on the Prime Minister and arguably then put the previous prerogative power into abeyance to that extent. At all times, the exercise of relevant legal powers was in the hands of the executive. Webster confirms this basic fact. Parliament’s constitutional role is to confer relevant legal powers as necessary, not to step into the international realm itself.

“Aha!” say the barrack-room lawyers on Twitter, “this proves that it is the Prime Minister who made ‘the decision’ to leave the EU – and she did it unilaterally. It’s a dictatorship! That’s like Hitler!” (This is a slight paraphrase but gives a taste of the level of enlightened discourse on social media on this topic). It was indeed the Prime Minister’s job to notify under Article 50, and there is no problem with that. It is what Parliament laid down in an Act. As with everything the executive does, any exercise of legal power presupposes a prior political decision to exercise that legal power.

“The” decision or “a” decision

Interestingly, Gross LJ on two occasions specifically did not say that the Prime Minister was responsible for “the” decision to notify. Instead he said the letter was “a” decision (although he also, less helpfully, referred to “the” decision at another point). The reference to “a” decision must be the right approach, ultimately, insofar as that means a soft political decision (“a decision”) rather than a hard legal decision (“the decision”).

There is no legal requirement in UK constitutional law for a hard legal “decision” in a formal sense before notification. If there were such a formal legal requirement in the UK (as there is in other countries), then that would be well known by everyone. The government undoubtedly would have followed any such legal process before triggering Article 50. The attempt to map onto the constitution, ex post facto, the requirement for a separate formal legal “decision” is seriously mistaken. Furthermore, no one can cite any source for such a rule in domestic law and there is no EU law basis for such a rule because Article 50 does not have direct effect.

It is of course obvious that “a” decision is required before anyone does anything at all. Before proposing a Bill to have a referendum on the EU, David Cameron “decided” a referendum was necessary and Parliament “decided” to agree with him before passing the European Union Referendum Act 2015. Before notification was given to the EU, the UK “decided” to leave the EU in the referendum. Of course, none of these decisions were “legal” decisions. They were “political” decisions. In the UK constitution that may mean they are crucially important and politically binding, but they have no legal implications.

It is fair to point out that Shindler stated that:

In short, by passing the 2015 Act, Parliament decided that one of the constitutional requirements that had to be satisfied as a condition of a withdrawal from the EU was a referendum. [19]

The referendum was not legally binding, as many people seem fond of repeating. It is also true that ministers in parliament referred to the referendum as the crucial moment when the UK decided to leave the EU. Ministers also said that MPs were simply implementing “the will of the people” by passing an Act that authorised notification.

None of this amounts to anything because all these elements are purely political and, incidentally, wholly non-justiciable. All that matters in UK constitutional law is that the executive has the legal power to do what it wants to do. It is all about vires, nothing more. In this case, the government wanted to trigger the Article 50 process. EUNoWA conferred the power to do that on the Prime Minister in early 2017 and she exercised it in March 2017. No formal, hard legal “decision” was ever necessary in UK constitutional law to trigger the Article 50 process. This judgment confirms that fact.

What is definitely not needed is some extra formal documented step in parliament before the notification is valid, never mind another Act of Parliament. Even if there had been, it would be totally non-justiciable under Article 9 of the Bill of Rights 1689. Furthermore, as the judge fairly caustically pointed out, we do not know who the claimant thought should actually be taking this apparently legally mandated formal “decision”, never mind how.

“it is noteworthy that the claimant has nowhere identified the body which, on its case, should take the “decision” to withdraw, which it contends remains lacking” [17].

Worse still, this case appeared to be inviting the courts to hold that EUNoWA was some kind of contingent Act in case, one day, parliament (or someone else?) somehow happened to make a formal, legal “decision” to leave the EU and parliament then passed another Act to give effect to that “decision”. Only at this point would EUNoWA suddenly kick in and the Prime Minister would be able to start the process. Perhaps this is why five separate High Court judges and a Lord Justice of Appeal have now described the arguments put in these cases as “unarguable”, “totally without merit” and “hopeless”.

The author would like to thank Aileen McHarg, Phil Hughes, Tom Poole, Tatiana Cutts, Alison Young and Jack Williams for their helpful comments on a previous draft. The usual disclaimer applies.

Robert Craig, AHRC PhD Candidate, Durham University

(Suggested citation: R. Craig, ‘New Article 50 Case Resoundingly Rejected by the Divisional Court’, U.K. Const. L. Blog (26th Jun. 2018) (available at https://ukconstitutionallaw.org/))

10Comments

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1

Andrew David Thorburn on June 26, 2018 at 9:59 am
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Robert, I am a bit simple when it comes to the English language. When something in law is declared ‘Arbitrary’ it means it should be changed. How can Her Majesty agree to whatever is agreed and put a signature to it, knowing full well, that the political process (with all the back room legal interpretation) said the ’15 year rule’ was a mischief? That is a major constitutional issue: “Dear Queen, you said this and now you say that, without asking for clarification…………………….you are naughty but I do like you.” Thump.

ADT 09:55 26/06/18 In Wattstown Rhondda.
2

Paul W on June 26, 2018 at 11:46 am
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The Government brought this particular litigation on itself by its ramshackle manner of taking the decision to leave the EU.

The question of how the decision relating to Article 50 was or should be taken was given little airtime in the Miller case. The Attorney General asserted in the High Court (Day 2 pp59-60) that the decision had already been taken by a series of steps, starting with the Conservative manifesto commitment to hold a referendum, followed by the referendum itself and its result, and then culminating in the press conferences held in the street outside No 10 where, first, David Cameron and then Theresa May confirmed that they would respect the referendum result. Had the Government succeeded in Miller, that would have been the sum total of decision-making by the Government.

If that process had been sufficient to constitute a decision, then that would in fact have triggered Article 50, since it is the decision, not the notification, that is the start of the process. Once the decision is made, it is then mandatory (‘shall’) under Article 50(2) to give notification of it to the EU.

The conventional manner in which the Crown makes treaty-related decisions is by way of a meeting of the Privy Council making an Order in Council. Making decisions by press conferences in the sunshine is a constitutional novelty and arguably invalid, since Bacon’s Abridgement (referred to in the Miller case) stated that proclamations require the Great Seal to be valid. None of these formalities was observed, despite the importance of the decision to withdraw from the EU and of knowing precisely when and how it was taken.

The EU (Notification of Withdrawal) Act was a curiosity of drafting. Rather than authorising the Crown to make a decision to withdraw, it oddly referred to the Prime Minister rather than the Crown, authorising her to give a notification, which the UK was bound to do anyway once it had decided to withdraw. Nevertheless, Parliament’s intention to authorise withdrawal was abundantly clear.

Following the passing of that Act on 16 March 2017, there were two cabinet meetings to consider and approve the terms of the Article 50 notice. The notice itself was then delivered on 29 March 2017. Thus, however the actual decision was made, it seems unarguable that, by the time the Article 50 notice was served (or by virtue of its being signed and served), the UK Government had made a valid decision to withdraw in accordance with its constitutional requirements.
3

Huw Sayer - Business Writer on June 26, 2018 at 11:47 am
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No surprise with this judgement.

As I said in a tweet on 11 April 2018:
People said we ‘should’ leave 😢
SC said PM had to get Pt permission to send letter.
Pt said PM ‘could’ send letter.
PM decided we ‘would’ leave when she signed, sealed and sent the letter.

The letter was the point of decision.
4

Sean Feeney on June 26, 2018 at 2:06 pm
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Contrary to Professor Craig and the Divisional Court, I believe Webster raises a constitutionally important question of law, namely was the purported notification under article 50 by the Prime Minister void ab initio because of antecedent error of law.
This claimant’s case is described in Webster at [4] as:

“the United Kingdom has not taken a qualifying decision within Art.50(1). It has therefore not fulfilled a necessary condition precedent to notifying the decision under Art.50(2).”a necessary condition precedent to notifying the decision under Art.50(2).

This question of law is answered (on a renewed application for permission heard by a Divisional Court finding no less!) at [15] with the finding that the article 50(1) and 50(2) decisions were lawfully taken together by the Prime Minister.

Resolution of this question of law is a matter of construction of a statute European Union (Notification of Withdrawal) Act 2017 and the Prime Minister’s letter. Such questions can only by authoratively answered by the Courts exercising their exclusive supervisory jurisdiction.

The High Court (including its Divisional Courts) not only has lawful discretion to grant relief out of time it has very recently (23 March 2018) exercised this power on a matter of far less legal consequence (a planning permission) with a delay that was far longer than the delay in Webster:

1. Thornton Hall Hotel Ltd, R (On the Application Of) v Wirral Metropolitan Borough Council [2018] EWHC 560 (Admin) [2018] PTSR 954, [2018] WLR(D) 188
http://www.bailii.org/ew/cases/EWHC/Admin/2018/560.html

The genuine question of law Professor Craig raises in his final paragraph is, in my opinion, a legitimate question of statutory construction that does not appear to be expressly addressed in the judgment:

“Worse still, this case appeared to be inviting the courts to hold that EUNoWA was some kind of contingent Act in case, one day, parliament (or someone else?) somehow happened to make a formal, legal “decision” to leave the EU and parliament then passed another Act to give effect to that “decision”. Only at this point would EUNoWA suddenly kick in and the Prime Minister would be able to start the process”

Essentially this a question of whether the meaning of the 2017 Act on statutory construction is that the Parliament did not merely confer the power of notification on the Prime Minister but had the intention that this power could be lawfully exercised without further enactment

Parliamentary intention means the meaning the Courts give to the words of a statute .

See eg Pepepr v Hart [1992] 3 WLR 1032, [1992] STC 898, [1992] UKHL 3, [1993] 1 All ER 42, [1993] AC 593, [1993] ICR 291, [1993] IRLR 33, [1993] RVR 127
http://www.bailii.org/uk/cases/UKHL/1992/3.html

That raises the further question of whether the 2017 Act itself can be construed as Parliament taking the article 50(1) decision itself, which the Divisional Court in Webster answered to the contrary.

In my view this is wrong and that high-policy decision was taken by Parliament (whatever individual Parliamentarians thought they were doing)

The contentions in the Prime Minister’s letter about the “decision” raise legitimate doubts about whether the Prime Minister made the error of law that the referendum had already taken the decision to leave the EU rather than taking the decision herself ; see the gnomic contingent finding in Miller at [124]:

“124. Thus, 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. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”

Professor Craig states:

“Furthermore, as the judge fairly caustically pointed out, we do not know who the claimant thought should actually be taking this apparently legally mandated formal “decision”, never mind how.”

Personally, unlike Professor Craig I would like permission for appeal to be granted so everyone in the UK and the EU has absolute legal certainty as to who took the article 50 decision and under what precise legal power.
5

Sean Feeney on June 26, 2018 at 2:19 pm
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The extensive case law on protective costs orders provides copious authority for the proposition that judicial-review cases on statutory construction are of the highest public importance.
6

Michael Stanton #FBPE #WATON (@don_mickael) on June 26, 2018 at 7:25 pm
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Twitter provides an opportunity for ignoramuses like me to say how we feel about things we may not understand. The £190,000 raised by A50 Challenge is an indication of the strength of that feeling for some of us.

The Courts have ruled that the questions we have been asking are not judiciable. The fact that we feel the need to ask them and seem to get no answers suggests that the Legislative and Executive branches of government are failing in their duty of good governance. One brief example:

Mr Cameron said: “If a majority of the People, including …. all those who have the right to vote, say ‘out’, out it will be. The Government will implement that decision.”
In the event, only 37% of the Electorate voted out. And yet, in the March 2017 House of Commons division on the EUNOWA, 494 MPs voted Aye, or 76% of those entitled to vote. In effect, therefore, Parliament emphatically voted for Brexit in direct contradiction of the EUreferendum result.

Under Britain’s democratic, constitutional arrangements, do the People have any formal right of redress? Judicial review, or a political equivalent, would have been ideal. Instead, we seem doomed to tweet with rage and exasperation, like birds in a cage. Until the next General Election, perhaps, but that, I fear, will be too late ….. under our democratic, constitutional arrangements.
7

Nunn The Wiser on June 27, 2018 at 4:06 pm
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The U.K. Government has clearly been intent on making-up legal procedures “on the hoof”! There is a clear reason why standard procedures were not followed, which I shouldn’t need to point out.

Suffice to say it has had the intended consequences of benefitting the Government in its clear objective of leaving the E.U. – in complete contradiction to its pre-Referendum stated aim!

This is not democracy – as neither was the scurrilous and totally inadequate “information debate” that proceeded the E.U. Referendum vote – which nobody on the Leave side of the debate now wishes to discuss.

“The will of the UNINFORMED people” is all that matters, and established legal procedures can be sidestepped with impunity, at the whim of the dictatorial Prime Minister.

Nice to know that this is the current state of democracy in the U.K!
8

Richard Allen on August 29, 2018 at 1:49 am
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Very interesting. I was involved in a Judicial Review against a council that essentially went through the same motions in passing a planning application. In a nutshell, an executive body can make any stupid decision it wants as long as it is following process i.e the decision is made legally. In the case of the issue I was involved with it was found that a party to the planning application had submitted fraudulent information. This allowed us to go back and show that the process had not been followed and pursue damages although it could not change the decision because it was too late (it had gone ahead). I note that the party in the challenge outlined above is now going back an arguing that Vote Leaves overspending should have voided the referendum under electoral rules. If that is successfully argued and the referendum result is voided what would the impact of that be on the triggering of Article 50? Would the impact be merely political i.e. Government could continue on the basis that the referendum result did not matter either way? Theoretically, your analysis shows that the Government could have triggered Article 50 even if the referendum had been negative however the reality is that had the referendum been in Remains favour parliament would not have given authority to the Government to trigger Article 50. It is certainly the case that without a clear result on the referendum the Government would not have got the authority to trigger Article 50. I would be interested to know your views, Professor Craig.
9

Joe Grant on September 11, 2018 at 12:37 am
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Our system of justice depends on absolute and unwavering respect for our independent judiciary. The ultimate purpose of the courts is, however, to serve ordinary people who believe that they have been wronged by conduct that is contrary to the law. Proper respect for the judiciary requires that plaintiffs should present their cases to the courts through intermediaries trained in the law and in the formalities of argument. Perhaps a reciprocal respect is due. Perhaps, when a plaintiff is rebuffed, the court should give its judgment in language that is as far as possible directly comprehensible, not only to the plaintiff, but to members of the general public who may share the plaintiff’s concern.

The judgment given in Webster is, in places, rather obscure. It is difficult, for example, for an ordinary person to recognize, in the Prime Minister’s letter, the difference (§15) between “the language of decision” and that of “notification alone”: perhaps some assistance could have been offered. The paragraph does, however, make it clear in the end that a decision to withdraw from the EU was taken by the Prime Minister under authority given by the EU (Notification of Withdrawal) Act.

That drives us backward to §13 and a more troubling obscurity, in the words “authorisation to .. notify .. plainly .. encompassed the power to take a decision to withdraw”. What is plain to the judicial mind may not be so to that of an ordinary person. Is the power to take that decision encompassed by a necessary implication from “authorisation to notify” to actual withdrawal? Can that necessity be upheld in the face of the fact that the Act says “may notify” and not “shall notify” or of the observation that it is not impossible for a notification to be invalid, to assert an intention to withdraw that does not in fact exist? Once again, some assistance might have been offered.

Paragraph 11 of the Webster judgment also raises doubt about the power of decision said to be encompassed. It cites §122 of the Supreme Court’s Miller judgment but neglects §87, which draws attention to Lord Hoffman’s warning that, where loss of rights is involved, “Parliament must squarely confront what it is doing and accept the political cost”. In the absence of express words in the Act and of necessary implication, should the Webster judgment presume that Parliament intended to delegate a decision that involved an inevitable loss of rights?

An untutored mind might come to wonder whether §15’s rejection of the requirement for an additional formality does not in the end amount to rejection of the requirement for any formality at all.
10

Robert Craig: Can the Government Use the Royal Prerogative to Extend Article 50? | UK Constitutional Law Association on January 9, 2019 at 9:01 am
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