A group of lawyers, academics and UK and EU citizens have obtained a controversial legal opinion which casts doubt on the legitimacy of Britain’s Article 50 notification.
Prime Minister Theresa May’s letter of notification to Donald Tusk, hand delivered on the 29th of March 2017, triggered the official start of the United Kingdom’s two-year withdrawal from the European Union.
“Mrs May has a really grave problem with what she has tried to do…there has been no Constitutional Decision of the UK to leave the EU”
A spokesperson for the group wrote to European Parliamentary officials ahead of a full summit on the 29th of April 2017, saying “Mrs May has a really grave problem with what she has tried to do. The attached Opinion will make it clear that there has been no Constitutional Decision of the UK to leave the EU – something which is now confirmed by four QCs.”
The advice follows on from the Supreme Court’s decision in the case brought by Miss Gina Miller, which was lost by the British government and ensured the decision to leave had to be ratified by parliament and not the government acting alone.
“Given that there has been no constitutional decision for the UK to leave the EU,” the spokesperson wrote to officials, “you will see from the text of Article 50 that there can of course be no Notification – this may be summed up as “No Decision Means No Notification” – which is actually completely obvious when you think about it for just a moment.”
The group is considering bringing legal action, though they made clear to EU officials they “believe that with something so obvious, there should not really be any need for this.”
They have asked officials to raise the legal opinion at the Brussels Summit on the 29th of April and have offered to attend if required.
“No Decision Means No Notification”
On the 29th of March 2017, Sir Tim Barrow delivered a letter from the UK Prime Minister, Theresa May, to the President of the European Council, Donald Tusk, containing a notification under Article 50(2) of the Treaty of the European Union.
The legal note of the group sets out their headline argument, writing “Here, we outline why the UK has not decided to leave the EU in a manner which is compatible with Article 50(1). Therefore, the purported Article 50 notification on 29 March 2017 is void.”
“In summary, this conclusion is arrived at because:
Article 50(1) requires a constitutionally valid decision to withdraw from the EU;
We know from the Gina Miller Supreme Court decision that the referendum and anything that went after it was not a constitutionally valid decision, only an Act of Parliament could make the decision; The European Union (Notification of Withdrawal) Act 2017 does not make the decision. It addresses a procedural matter and does not address the substantive issue of whether the UK should withdraw expressly or otherwise.”
Article 50(1) and 50(2) say:
“(1) Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”
“(2) A Member State which decides to withdraw shall notify the European Council of its intention.”
For the UK, we now know from Miller that Article 50(1) that Article 50(2) effectively translates as:
“(1) The United Kingdom may, by means of an Act of Parliament, decide to withdraw from the Union.”
“(2) After the United Kingdom has decided to withdraw from the Union by means of an Act of Parliament, it shall notify the European Council of its intention.”
Only a decision under Article 50(1) authorises a notification under Article 50(2). So, the Act had to say something like:
“The United Kingdom shall withdraw from the Union.”
We know the UK had not decided to withdraw before the Act. In particular, we know that the referendum had no constitutional effect, unlike the binding 2011 AV referendum. So, the Act had to contain the decision. Yet section 1(1) says:
“(1) 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.”
If this conclusion is correct, the document argues, “the obligations to negotiate under Article 50(2) do not arise, any withdrawal agreement purportedly made under Article 50 is void, and the Treaties shall not cease to apply to the UK as set out under Article 50(2).”
Further, the advice says, “if the Article 50 notice is at risk of being found invalid, the EU cannot safely or in good faith proceed with preparations such as relocating agencies.”
Where fundamental rights are in question, Parliament must “squarely confront” what it is doing. Even if an implied decision were acceptable, is it there anyway? The court cannot rewrite an Act in way which contradicts the evident intent.
If an act says the wrong thing and was intended to say the wrong thing, that is a problem for the legislature, not the courts. If we look at ministerial statements in Hansard as permitted in such circumstances under Pepper v Hart  3 WLR 1032, they shed a very bright light on the legislative intent and remove any doubt. David Davis said it was:
“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.”
On the red benches, Lord Bridges wrongly tells the House of Lords that the decision to withdraw was made by the “people”. It was a “choice that this Parliament gave them.”. Parliament had in fact retained the decision for itself.
The Lord Privy Seal, Baroness Evans of Bowes Park, was clear when referring to the substantive Leave v Remain issue that the “Bill is not about revisiting that debate”.
With the interference of foreign powers in the referendum now confirmed by the Commons PCAC committee inquiry, and an investigation into Leave.EU’s campaign donations underway by the Electoral Commission, the ‘will of the people’ argument can only be restored by the Conservative government seeking a fresh mandate in the forthcoming General Election.
The group’s advice argues that Theresa May’s letter to Donald Tusk, though it would be inadmissible in court as evidence of what the Parliamentary intent was, suggests “Parliament was intended to make the decision by effectively ratifying the advisory referendum.”
It appears the Government was fully aware of the problem’s raised within the legal advice before it gave the notification to withdraw. One pointed example of this was recorded in Hansard on the 14th of March 2017.
“Sir William Cash (Stone) (Con) – “Does she accept that now is the time … to take urgent legal advice in respect of the legal warnings that have been given by Lord Hope of Craighead to be sure that we do not have any unforeseen further attempts to undo that Bill in the courts?”
The Prime Minister – “I can assure my hon. Friend that, as we move ahead with this, as we have at every stage, we will take appropriate legal advice, but as he will know we do not discuss that on the Floor of the House.”
It is understood that the legal arguments have been reviewed independently of the group, assessed as “sound” and, on a “hard reading” by a judge, may succeed but, as with the Miller case, the defects could be addressed by passage of amendments through parliament.
“if the Article 50 notice is at risk of being found invalid, the EU cannot safely or in good faith proceed”
The group argues that the current situation “is manifestly untenable for the EU and all its Member States including all sides of the argument in the UK.”
“Until the UK government obtains an Act deciding to withdraw and then issues a new and indisputably valid notice under Article 50(2) – or, as appears highly unlikely, until a competent court rules, after all rights of appeal have been exhausted, that the European Union (Notification of Withdrawal) Act does, in fact, contain a valid decision – the EU and the EU27 would be reckless to proceed with the process as any steps taken or agreement reached is likely to be void.”
With the General Election now just over a month away, the House of Commons is in recess and early polls indicate a landslide victory for the Conservatives which would not hinder the passage of any such amendments.
The Brussels Summit takes place on the 29th of April.