The “Three Knights Opinion” on Brexit: A response

Several eminent lawyers argue that legislation authorising the triggering of Article 50 is insufficient to authorise the conclusion of the Brexit process. But it is far from clear that their analysis is compatible with the judgment of the Supreme Court in the Miller case.

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Bindmans LLP have published a fascinating opinion which argues that the EU (Notification of Withdrawal) Bill that is presently before Parliament does not authorise Brexit, and that a further Act of Parliament will be required if Brexit is to occur in a way that is lawful as a matter of UK law. The opinion is written by Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC, Helen Mountfield QC and Gerry Facenna QC. The authors of what Bindmans have dubbed the ‘Three Knights Opinion’ — including those who are not knights — are leading authorities and their views deserve close scrutiny. In this post, I question whether the argument lying at the core of the opinion is capable of withstanding such scrutiny.

However, before I address that argument, according to which Parliament must legislate at the end of the negotiation process, let me explain why the authors of the ‘Three Knights Opinion’ contend that their position is not rendered irrelevant by the inevitability of Brexit as a matter of EU law once Article 50 is triggered. On this point, their reasoning proceeds along two distinct but complementary routes. First, they argue that a notification issued under Article 50 can be unilaterally withdrawn by a Member State if, for instance, it reconsiders its position during the two-year withdrawal period. Among the arguments they offer in support of this view, Sir David Edward et al say that

it would be inconsistent with the fundamental principles and aims of the European Union for a Member State to be expelled against its will (at least in the absence of some gross violation of the European Union’s fundamental norms). Where a Member State has legitimately reconsidered its decision to withdraw, its forced expulsion would be contrary, at least, to the principle of solidarity and the fundamental European Union citizenship rights and status of nationals of that Member State who, until departure of the Member State, are also citizens of the European Union.

Second, the opinion contends that as well as accommodating this sort of ‘change of heart’ scenario, Article 50 also accommodates the possibility of conditional notification of an intention to withdraw. According to the authors’ core argument, to which I turn below, it is a ‘constitutional requirement’ of the UK that legislation be enacted not only prior to the beginning, but also at the end of, the negotiation process. If this so, then (the argument runs):

[T]he United Kingdom is entitled to say to the European Union: ‘We have decided to withdraw and here is our notice under Article 50. However, since withdrawal will involve a fundamental change to our laws and will inevitably amend or abrogate individual rights, the terms of withdrawal, in so far as they have such a consequence, can be given effect under our constitution only by an Act of Parliament, and our decision to withdraw is therefore subject to approval of the terms of withdrawal by our Parliament.’

On this view, if one of the UK’s constitutional requirements was that legislation be enacted at the end of the negotiation period, and if such legislation were not forthcoming, a relevant constitutional requirement would not have been satisfied and an Article 50 notification given in conditional terms would lapse. This presupposes that when Article 50(1) says that a Member State ‘may decide to withdraw from the Union in accordance with its own constitutional requirements’, the possibility arises of issuing a notification under Article 50(2) before all pertinent ‘constitutional requirements’ have actually been satisfied. Such a reading of Article 50 might be thought to sit uncomfortably with the fact that Article 50 appears to presuppose that a decision — presumably, a valid and legally complete decision — to withdraw exists prior to the point of notification. But even if that point is put to one side, we are left with the crunch question whether a relevant constitutional requirement actually exists. Is legislation at the end of the negotiation process really a constitutional requirement in the first place?

On this issue, which is central to their argument, Sir David Edward et al advance two key propositions. First, they argue that the EU (Notification of Withdrawal) Bill does not authorise the removal of any specific rights, and that the removal of rights will therefore need to be effected by subsequent legislation:

The Bill does not say anything about rights and obligations currently enjoyed under European Union law, for example which of them will be preserved, or which will be removed. It does not remove any rights, nor does it make any changes to domestic law, nor authorise the Government to do so. The Bill only authorises the Prime Minister to notify the United Kingdom’s intention to withdraw from the European Union. It cannot serve as the legislative basis for the United Kingdom’s withdrawal from the European Union unless it is read as an exceptionally wide enabling law, handing to the Executive power to decide which legal rights may be given away or lost through negotiations with the European Union, or by leaving the European Union without an agreement. No such intention is expressed on the face of the Bill and we doubt that the Courts would interpret the Bill in that way.

Taken on its own, this suggests that legislation enacted prior to the triggering of Article 50 could authorise withdrawal (rather than merely authorising the Government to issue an Article 50 notification) but that the EU (Notification of Withdrawal) Bill does not, because of how it is drafted, actually authorise withdrawal. This argument is certainly not without merit, for reasons that Paul Daly has set out. However, on balance, I find the argument problematic. Of course, courts must interpret legislation primarily by reference to the words on the page — and it is true that the current Bill does not specifically authorise the removal of particular rights. But the possibility surely cannot be discounted that a court called upon to interpret the legislation now being enacted would take some account of the context in which it was passed — and the very widely shared understanding that the Bill is, contrary to the view of Sir David Edward et al, intended to serve as a ‘legislative basis for the United Kingdom’s withdrawal from the European Union’.

Second, however, the opinion appears to go further than suggesting merely that the EU (Notification of Withdrawal) Bill is inadequate — an argument that would imply that Brexit could be authorised by a single, but more detailed, Bill enacted prior to the triggering of Article 50. Rather, Sir David Edward et al argue that:

At present it is impossible to know what rights of British citizens and businesses, and of nationals of other Member States, will be lost or retained following withdrawal from the European Union. Parliament is responsible for the United Kingdom’s decision to leave the European Union. It must take that decision once it is clear what the consequences will be for the rights of British citizens and businesses, and nationals of other Member States lawfully resident or established here … Parliamentary sovereignty and the principle of legality require Parliament expressly to authorise withdrawal from the European Union on the terms agreed with the European Union, or to authorise withdrawal if no acceptable terms can be agreed. Given the fundamental changes in the law and legal rights that will result, such authorisation must take the form of primary legislation.

The implication of this argument is that nothing that Parliament does at the present stage can actually authorise Brexit: only legislation enacted at the end of the negotiation process can do that, once Parliament is in a position fully to appraise the rights that will be lost. This argument strikes me as problematic. In order to explain why, let me offer, by way of conclusion, some reflections on how the opinion of Sir David Edward et al relates to the following passage from the majority judgment in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5:

The Secretary of State relied on the fact that it was inevitable that Parliament would be formally involved in the process of withdrawal from the European Union, in that primary legislation, not least the Great Repeal Bill …, would be required to enable the United Kingdom to complete its withdrawal in an orderly and coherent manner. That seems very likely indeed, but it misses the point. If ministers give Notice [under Article 50] without Parliament having first authorised them to do so, the die will be cast before Parliament has become formally involved. To adapt Lord Pannick’s metaphor, the bullet will have left the gun before Parliament has accorded the necessary leave for the trigger to be pulled. The very fact that Parliament will have to pass legislation once the Notice is served and hits the target highlights the point that the giving of the Notice will change domestic law: otherwise there would be no need for new legislation.

The majority’s reference to a ‘need for new legislation’ following the triggering of Article 50 but before Brexit refers to a practical, not a legal, need: that is, a practical need to avoid the legal chaos that would result if the EU Treaties ceased to apply to the UK without making the sort of preparations that the ‘Great Repeal Bill’ will make. Miller is therefore certainly not authority for the proposition advanced by Sir David Edward et al that legislation at the end of the negotiation process is a legal requirement. However, it is also arguable that that proposition is not merely unsupported by but is incompatible with Miller.

As is well known, Lord Pannick’s ‘bullet’ metaphor — and the line of thinking for which it stood — was central to the decision in Miller. Indeed, borrowing the same combination of metaphors used in the excerpt set out above, it was precisely because, on the majority’s analysis, the ‘die’ would be ‘cast’ as soon as Article 50 was triggered that Parliament had to pull the trigger (or authorise Ministers to do so). This thinking turned centrally upon the existence of a causal link between the triggering of Article 50 and a loss of legal rights (in the sense that the former will lead to the latter absent relevant supervening events). For this purpose, the fact that that causal link might be broken by such supervening events (e.g. mutual agreement that the UK can withdraw its notification or unilateral withdrawal if that is legally possible) is nothing to the point.

Rather, the crucial issue, as far as the majority reasoning in Miller is concerned, is that such a causal link exists in the first place, such that the natural consequence (irrespective of whether it is a consequence that can be averted by supervening events) of triggering Article 50 is the loss of EU law rights and of EU law as a source of UK law. Indeed, if no such link existed, the whole argument in Miller would have collapsed, and the triggering of Article 50 would have been nothing more than the initiation of a negotiation process that could result in no loss of rights absent primary legislation at the end of that process. But that, of course, is not how the majority saw the effect of giving notice under Article 50: rather, it said that doing so had ‘fundamental and irreversible consequences’. Yet central to the reasoning contained in the opinion of Sir David Edward et al is the contention that no loss of rights is occasioned by triggering Article 50 because (a) rights cannot be removed except by subsequent legislation and (b) absent such subsequent legislation a domestic ‘constitutional requirement’ remains unsatisfied and the Article 50 notification therefore withers.

For that reason, it is questionable whether the opinion of Sir David Edward et al can withstand the majority judgment in Miller, given that the former denies Article 50 notification an effect that is central to the reasoning contained in the latter. If Miller is right — or if we at least accept that it represents the law, as we now surely must — then it is hard to see how the ‘Three Knights’ can be correct as well. One cannot have one’s cake and eat it.

I am grateful to Professor Aileen McHarg and Professor David Mead for their helpful comments on an earlier draft of this post. The usual disclaimer applies.