On whether the Article 50 decision has already been taken

By Mark Elliott and Alison Young

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The High Court will shortly hear a challenge to the lawfulness of the Government’s view that the formal EU withdrawal process can occur without any legislation being enacted by Parliament. In late September, the Government’s “detailed grounds of resistance” — its outline arguments in relation to this litigation — were published following a court order. The Government has now also published its full skeleton argument. In this post, we address two related aspects of that skeleton argument.

Has the Article 50(1) decision already been made?

The central issue at stake in the litigation is about where authority lies to trigger the Article 50 withdrawal process. In its detailed grounds of defence, the Government indicated in certain passages that it considered that the decision to withdraw from the EU had already been taken. For instance, it said that the decision for the purpose of Article 50(1) is “the UK’s decision to leave the EU, as articulated in the referendum result”. The implication was that the referendum result was the decision, and that the decision had therefore been taken.

The Government’s fuller, now-published skeleton argument makes it much clearer that the Government line is that the Article 50(1) decision to withdraw has been taken. Indeed, it says so in terms, and makes this assertion central to its case. For instance, it says that the lead claimant “must be taken as accepting that the Article 50(1) decision that the UK should withdraw from the EU has been validly taken”. The Government also says in its skeleton argument that the second claimant and one of the intervening parties “challenge the decision to withdraw itself, but do not appear to recognise that that decision has been taken”. Indeed, the Government even asserts that it is “apparently common ground between all parties” save one that a valid decision to withdraw has already been taken. (One of the interested parties has filed a clarification note indicating that it does not accept that a valid withdrawal decision has been made.) These passages from the full skeleton argument place beyond doubt that it is the Government’s view that a decision for the purpose of Article 50(1) is now in place.

The assertion that an Article 50(1) decision has already been taken is surprising. In Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469, Lord Dyson MR said that “by passing the [European Union Referendum Act 2015] 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” (our emphasis). Admittedly, it is open to the Government to argue that this is “dicta” and not “ratio”; the specific question as to the “constitutional requirements” for a decision did not arise. Nevertheless, this is a clear statement from Lord Dyson that the referendum was a necessary constitutional requirement, but was not in and of itself sufficient. It was open to Lord Dyson to argue that the referendum outcome alone would suffice. He made no such statement.

Lord Dyson’s analysis is of a piece with the advisory nature of the referendum. Admittedly, care is needed when characterising a referendum as “advisory” or “binding”, since those terms can serve to obscure as well as to illuminate, but to suggest that the EU referendum was other than advisory, from a legal perspective, is wide of the mark. Legislation can of course provide that a given referendum outcome triggers an administrative obligation to do something. The Parliamentary and Voting Constituencies Act 2011 is binding in this sense. There is, however, nothing in the European Union Referendum Act 2015 to suggest that it is similarly binding: it does not turn the referendum outcome into a trigger requiring the Government, or anyone else, to do anything. None of this should come as a surprise to anyone. Indeed, the House of Commons Library published a briefing paper for MPs on 3 June 2015 explaining that, what was then the European Union Referendum Bill

does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a  vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced.

If the conclusion is reached — as it surely must — that the referendum is not in itself the Article 50(1) decision, then questions arise about what would amount to such a decision, whether such a decision has already been taken (through some combination of the referendum and further steps), and by whom and on what authority such a decision can be taken.

Perhaps, then, the Government has taken a decision in the light of — but separately from — the referendum outcome? There is, however, an air of unreality about any such suggestion. The Government has certainly indicated that it envisages that the UK will withdraw from the European Union. It has, in that sense, announced that it is moving along a policy pathway that is intended to culminate in the UK exiting the EU. But there must be a fundamental distinction between (on the one hand) the adoption by the Government of a particular (and so far ill-defined) policy posture and (on the other hand) the making of a formal decision that will trigger a legal obligation to notify the EU and which, in turn, will set in train a potentially irrevocable withdrawal process with momentous consequences. To suggest that a decision of such magnitude can be inferred from cobbled together and often inconsistent ministerial statements about what might happen is far-fetched, to say the least.

There is, of course, what might seem an obvious objection to the foregoing analysis. If it is the case that the Government has the authority to make an Article 50(1) decision without reference to Parliament, and if the Government — as it does — says that such a decision has been taken, then that may seem to be clear evidence that such a decision has been taken. This argument will not get the Government anywhere if it turns out that it has no authority to take the decision. But what if it does? A difficulty with the objection is that the skeleton argument is highly unspecific about whether a Government decision that is distinct from the referendum has actually been taken, and, if it has, what exactly it consists of. Perhaps the closest that the skeleton argument comes to addressing this matter is the statement that:

Having, in implementation of the outcome of the referendum, validly decided that the UK should withdraw from the EU (which is, apparently, common ground between all parties, save for FDE), the Government can only give effect to that decision through the Article 50 process by notifying the European Council pursuant to Article 50(2).

This implies that the Government has “decided” that the UK should withdraw in the light of the referendum, such that some decision that is distinct from the referendum has been made. However, the amount of weight that this point can bear is questionable. For instance, it sits in tension with the notion that the referendum was more than advisory, and that the Government was in effect bound to implement the outcome: if the referendum outcome really did have such an effect, it is unclear what space would remain for the making of a Government decision. The only possible space is to distinguish between a political and a legal obligation. The Government may feel bound to adhere to the wishes expressed by the electorate. But this does not mean it is legally bound to do so. The question before the court concerns the law, not politics. Another way of looking at this is to say that if the Government’s view is that the referendum outcome obliges the Government to notify the European Council under Article 50(2), it is difficult to understand why the Government would consider it necessary to take any decision under Article 50(1). The only possible decision left is as to when the Government will notify. This may not be the free choice the Government appears to believe it to be. Article 50(2) imposes a clear obligation: the UK “shall notify the European Council of its intention” to leave the EU. It is not beyond the realms of possibility that European Union law would imply that the obligation to notify cannot be indefinitely delayed, or must take place within a reasonable time period.

We are left, therefore, in the odd situation that the Government is asserting in its skeleton argument that an Article 50(1) decision has been taken without clearly stating when, by whom, or in what way such a decision was taken, with the whole matter framed so as to leave ambiguous whether a decisional act of Government that is independent of the referendum outcome itself has really occurred at all. Against that background, there are strong grounds for arguing that once we reject any suggestion that the referendum outcome itself can be the decision, the overarching argument that the Article 50(1) decision has been made collapses.

Is there an intermediate stage between the “decision” and the “notification”?

This confusion is exacerbated by other statements in the Government’s detailed grounds of response and the skeleton argument. These statements appear to suggest that the triggering of Article 50 is a three stage as opposed to a two stage process. Article 50 refers to the “decision” and the “notification” of the decision to leave the EU. The Government also includes — as an intermediate, additional stage — the further decision of the Government to follow the outcome of the referendum, leading to the notification of the UK’s decision to leave the EU. For example, in the detailed grounds of response, we find the statement that

the Government is at least entitled to decide that the UK should withdraw from the EU, in accordance with the outcome of the referendum, and to give effect to that decision in a manner prescribed by Article 50 itself, by giving notification under Article 50(2).

In the skeleton argument, the Government explains how, although the European Union Act 2011, for example, has “constrained various aspects of the Government’s prerogative powers to act under the EU Treaties” this has “not constrained the Government’s power to decide to withdraw from the EU Treaties altogether, or to give effect to such a decision by giving notification under Article 50”.

These statements would appear to suggest a potential three stage process. First, there is the “decision” to leave the European Union as expressed by the referendum outcome. Second, is the “policy choice” of the UK Government to accept the outcome of the decision. Third comes the “notification” of that decision to the European Union. If there is an intermediate stage, as with our discussion of the “decision” to leave the European Union, it is also hard to know when and how this took place. The skeleton argument states both that “[p]rior to the referendum, the Government’s policy was unequivocal that the outcome of the referendum would be respected” and that “the current Prime Minister has confirmed that the Government will give effect to the outcome of the referendum.”

It is hard to understand the role of this intermediate stage. Either the policy choice is part of the decision, or it occurs prior to the notification of the decision to the European Union. If it is part of the decision, then it is subject to the requirements of the UK constitution, both to ensure that the act is lawful under UK law and to ensure that the decision is lawful as a matter of EU law — to notify a decision which has not taken place according to the UK’s constitutional requirements may give rise to future repercussions. If the policy choice is intended as an intermediate stage, after the decision and before notification, the policy choice to accept the decision to leave the EU, expressed in the referendum, is still subject to the laws of the United Kingdom. Article 50 may oblige the UK to notify the EU of its intention to leave, but it is silent as to how the notification is to be made. The issue before the court is as to whether the decision to leave, and the notification of that decision to the European Council, is lawful under UK law.

There are also further problems that arise from imposing an intermediate stage of the policy choice between the decision to leave the EU, evidenced by the referendum outcome, and the notification of that decision. Article 50(2) requires that the UK shall notify the European Council of the decision to leave the EU. There appears to be no space for any intermediate stage of a policy choice, unless this is part and parcel of the decision. If the policy choice is not part and parcel of the decision, then the policy choice left to the Government can only be as to when to notify the European Council, or as to how that notification is made (e.g. legislation, prerogative power exercised by a Minister alone, prerogative power exercised by Order in Council). As discussed above, the choice as to when to notify may be restricted by European Union law, which may imply a reasonable time period in which any notification shall be made. If the policy choice is as to the means through which notification is made, then this still begs the question as to the legal requirements of the UK constitution which may govern this choice.

Imposing an intermediate stage is misleading. Even if the intermediate stage exists, it could still be subject to the requirements of the UK constitution. The question would still remain as to whether, as argued by the Government, the executive has the power to accept the decision of the referendum and notify the European Council of that decision through expressing a policy and then exercising its prerogative, or whether either, or both, of these stages require legislative authority. It is far easier to see this intermediate stage as part of the decision to leave the European Union, this decision consisting of the outcome of the referendum and a formal decision by the relevant constitutional institution, in the light of that outcome, that the UK should leave the EU. This, however, leaves unanswered the question as to whether — as a matter of the UK’s constitutional requirements — the Article 50(1) decision-making process can be completed by the Government, or whether it requires parliamentary involvement.

Mark Elliott is Professor of Public Law at the University of Cambridge and a Fellow of St Catharine’s College, Cambridge. Alison Young is a Professor of Public Law at the University of Oxford and a Fellow of Hertford College, Oxford.