July 6, 2017
uk
False mantra of
the peoples will
David Wolchover addresses legal and constitutional issues
arising out of the EU Referendum result and reports on plans
to use Judicial Review in halting the Brexit talks.
(This article was amended on July 10, 11, 19 and 20, 2017, by amending various passages on page 7-11.]
I
T IS COMMONLY assumed that Prime Minister
Theresa Mays letter of March 29, 2017, to
European Council President Donald Tusk
triggered Article 50 of the 2009 Treaty on
European Union (the Lisbon Treaty). Although the
letter professed to give notice of the UKs intention
to leave the EU, a growing number of people have
come to the realisation that it did no such thing, that
it had no legal effect, that it completely failed in its
declared purpose of activating Article 50 and that, as
I wrote in Counsel Magazine Online, the letter was a
faux trigger, a chimera, an illusion, not the real
thing (Article 50: the trigger that never was? June
2, 2017; an online poll of readers has consistently
been registering between 82 and 85% in agreement).
The reason why it may be contended that we
have landed up in this extraordinary predicament
focuses on one simple and undeniable fact. The UK
has not hitherto evinced any statutorily identifiable
commitment to leaving the EU and has certainly not
made any formal, legally binding decision to do so.
As constituted by the terms of the European
Union Referendum Act 2015 (EURA) the EU
Referendum 2016 was fundamentally precluded
from registering a conclusive, collective, legally
binding intention on the part of the UK to leave. In
other words, there was no statutory basis on which a
leave vote was capable in law of standing as a
withdrawal commitment, whether the vote was 51%
or even 99%. The Referendum result of June 23,
2016, was therefore inherently incapable in law of
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counting either as a withdrawal decision or a binding
declaration of intent on the part of the British
people. The decision to leave the EU was one which
could only be made by an Act of Parliament and
Parliament has never passed an Act declaring such a
decision. As I further commented in Counsel
Magazine Online, this could be the greatest elephant
in the room or the Emperors New Clothes of all
time.
With the formal opening of the BREXIT
negotiations on Monday, June 19, 2017, the question
whether there has been a constitutionally settled
decision to withdraw from the EU is now central to
the question whether Her Majestys Government
have any lawful mandate to conduct the
negotiations. This is key to the whole exercise
because the EU Commission only agreed to a
negotiation process on the assumption (based on
what they were formally told) that the UK had made
a leave decision. Understandably there was never
any question that they would provisionally negotiate
in advance of a decision.
Actionable cause for Judicial Review
Since the UK governments ultimate objective in
embarking on the process is a treaty of withdrawal
under Article 54 of the 1969 Vienna Convention on
the Law of Treaties (with diverse other associated
treaties) for which the government will have no
lawful mandate to make, it must follow that in the
July 6, 2017
absence of any statutorily defined and identifiable
expression of intent made or validated by Parliament
the very process of negotiation to that end must be
ultra vires under UK domestic law. It would therefore
be open to any citizen or body to mount a judicial
review in our domestic courts by way of challenging
the legality of the negotiations. Furthermore, any EU
citizen or EU Member State may apply to the
European Union Court of Justice for judicial review
technically an annulment of the negotiations
under Article 263 of the Treaty on the Functioning of
the European Union. In any such litigation it might be
appropriate to include for consideration evidence
currently emerging of the vitiation of the
Referendum by endemic corruption of the electoral
process (see eg Carole Cadwalladr, Cambridge
Analytica affair raises questions vital to our
democracy, Observer, 4 March 2017, https://
www.theguardian.com/politics/2017/mar/4/cambrid
ge-analytica-democracy-digital-agearticle; investig-
ations by the Electoral Commission are currently in
train).
Forces gathering for legal action
It is understood that there are a number of UK
citizens who are planning to take legal action (the
redoubtable Gina Miller is not one of them) and that
crowdfunding measures are in hand to furnish
security for costs. The prospective claimants own
legal expenses could be minimal as there are a
number of practitioners who have expressed a
willingness to act pro bono in the interests of
salvaging constitutional integrity out of the calamity
of Parliaments hitherto Brexit insouciance. However,
it is understandable that potential contributors may
be reluctant to put up security for costs unless
leading counsel is instructed at full commercial rates.
Article 50
Explication of the probable cause of action begins
with a focus on the exact terms of the first two
paragraphs of Article 50. They provide:
(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.
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Paragraph (1) declares or describes (as the case may
be) the obvious principle that no Member State is
permanently locked into membership. (I use the
disjunctive verbs in recognition of the contention
expressed by Kenneth Armstrong, University of
Cambridge Professor of European Law, in challenging
part of my thesis, that Art. 50(1) is descriptive rather
than normative, identifying a right in EU law which
exists under international law, and in particular
under Vienna Article 54 to withdraw from a treaty:
Has Article 50 really Been Triggered? UK
Constitutional Law Association Blog, 14 June 2017.)
The prescriptive nature of para (2) is intended not
to preclude the absurd possibility of a secret
withdrawal but simply as an essential, first stage in
the series of steps prescribed in sub-paragraphs (2)
to (5) which lay down EU procedures for the
withdrawal process.
In the governments appeal against the case
brought by Gina Miller, R. (on the application of
Miller and another) (Respondents) v Secretary of
State for Exiting the European Union (Appellant)
[2017] UKSC 5,
https://www.supremecourt.uk/cases /docs/uksc-
2016-0196-judgment.pdf, the Supreme Court (SC)
held that in the particular context of EURA the
phrase in accordance with its own constitutional
requirements in Art. 50(1) meant by an Act of
Parliament. The Referendum result did not
constitute the decision because, as already
mentioned, Miller confirms that EURA was
specifically and intentionally set up to test the water,
not to designate the result as a binding withdrawal
decision.
No withdrawal decision so no Article 50
notification
In a nutshell the essential point to note is that since
the UK had not made a withdrawal decision in
accordance with its own constitutional
requirements there was nothing material about
which to notify the European Council. It is as simple
as that. It would follow that the negotiations are
proceeding on an entirely misconceived and
unlawful footing.
Advisory nature of the Referendum
For the Article 50 procedure to be activated there
had to be either a withdrawal decision or a binding
July 6, 2017
manifestation of intent to withdraw. The reason why
the EU Referendum was inherently incapable of
counting as such was that as statutorily constituted it
was invested with no more than advisory, or
consultative, status. As the House of Commons June
2015 Briefing Paper on the EU Referendum Bill
explained:
This Bill requires a referendum on the
question of the UKs continued membership of
the European Union. It does not contain any
requirement for the UK Government to
implement the results of the referendum, nor
set any 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 explanation was reiterated by the Minister for
Europe, David Lidington, when he presented the Bill
to the House of Commons:
The legislation is about holding a vote; it
makes no provision for what follows. The
referendum is advisory, as was the case for both
the 1975 referendum on Europe and the
Scottish independence vote last year. In neither
of those cases was there a threshold for the
interpretation of the result.
The principle implicit in these characterisations of
the Referendum was affirmed by the SC in Miller. It
was not and could never be invested with the
binding force of law.
An advisory or consultative referendum is one in
which a positive preference expressed by a simple or
indeed overwhelming majority does not bind
Parliament to adopt the evinced preference. Rather,
in the nature of any consultation in which soundings
are taken of diverse opinions it requires the
legislature merely to take it into account among a
range of factors in determining the balance of
advantage with a view to adopting a given course of
action, in this case that of remaining in or leaving the
EU. To exemplify the point the SC drew upon the
example of the 2011 referendum on the question
whether the alternative voting system should be
adopted in Parliamentary elections. In making
provision for that referendum Parliament explicitly
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pronounced that a simple majority vote in favour of
the proposition would automatically bring the
proposed change in constitutional law into effect
without any requirement for subsequent statutory
ratification (Parliamentary Voting System and
Constituencies Act 2011, s.8; Miller, para 118).
As the Referendum was instituted to be a
consultation a test of public opinion with a view
to Parliament considering all known factors before
making a decision, it would arguably follow that the
Referendum was implicitly intended to be the
precursor to a Parliamentary leave or remain debate
in any event. Thus, even if the vote had been 99 per
cent to leave Parliament would not have been legally
be bound to adopt the preference. Again, if the
majority vote had been to remain, Parliament,
having by implication committed itself to debate the
issue, could in theory at any rate, nonetheless have
decided that the balance of advantage lay in leaving.
The paradox of unworkability
Unfortunately the viability of the 2016 Referendum
was inherently vitiated by what might be called a
paradox of unworkability, its very own Catch 22. In
the nature of a consultation the post Referendum
process would oblige Parliament to embark upon a
comprehensive and pragmatic determination of the
balance of advantage for the UK in leaving the EU.
Yet even a Royal Commission appointed to put the
full range of relevant factors and issues under the
microscope, could never second-guess the outcome
of negotiations and the EU would not countenance
negotiations before the European Council have been
formally notified of the intention to leave under
Article 50(2). The Catch 22 is that you cannot make a
comprehensive determination of the balance of
advantage without negotiating for a deal and you
cannot negotiate for a deal without making the
decision to leave.
The advisory nature of the referendum therefore
created a trap from which it was impossible to
escape.
For that reason it might have been preferable
certainly it would have been more manageable to
make the Referendum result binding on condition
that a positive leave vote reached a prescribed
threshold super-majority, say of sixty-six per cent
the classic threshold used in special company law or
United Nations resolutions to reflect the fact that a
July 6, 2017
clear (rather than a bare majority) favoured changing
the status quo. Had this been considered during the
passage of the Bill which became the EU Referendum
Act 2015 Parliament could have debated a suitable
threshold (see Richard Bird, Why the UK needs
another EU debate and vote, November 1, 2016,
and How the EU Referendum was hijacked, June
12, 2017, Huffington Post blogs). It might also have
considered the question whether that threshold
should be a proportion of the whole of the
registered electorate (that is to say including de
facto abstensions) or merely of the votes cast.
Although more manageable the problem with a
binding leave vote is that, as Richard Bird has
pointed out (above, to name but one commentator
among a number), if presented as the ballot option
leave the EU it is so simplistic as to be virtually
meaningless.
Conjuring opinion into decision
In their 2015 Manifesto the Conservative Party
stated that they would respect the outcome of the
promised Referendum, an ambiguous phrase which
could either have meant no more than that it would
be seriously considered by Parliament in making a
decision or that it would be slavishly followed. Then,
early in 2016 Prime Minister David Cameron
announced a radical shift of approach. No longer
would his government simply respect the outcome.
Addressing the House of Commons on 5 January he
stated:
Ultimately, it will be for the British people to
decide this countrys future by voting in or out
of a reformed European Union in the
referendum that only we promised and that
only a Conservative-majority government was
able to deliver (https://www.theguardian.
com/politics/2016/jan/05/eu-referendum-
david-cameron-confirms-ministers-campaign-
brexit).
In other words, Cameron decreed, the referendum
vote would now constitute the decision and a leave
vote would be implemented by the government.
Guaranteeing finality It has been plausibly
conjectured by Richard Bird (above, 12 June 2017)
that in confident anticipation of a simple majority
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voting to remain Cameron hoped to bring finality to
the issue within the Conservative party.
Escape from the unworkability paradox It also
incidentally furnished Cameron with a convenient
escape route from the trap of his own making, the
paradox of unworkability, though whether he was
aware of its escape potential is unknown.
Cameron may have been speaking with all the
authority of his office but the decree had precisely
no legal warrant. To change the Referendum from
advisory to binding would have required repeal of
the EURA and its replacement by a new Act. But a
majority of Parliamentarians might well have insisted
on a two-thirds threshold to change the status quo,
which might well have provoked trouble for him
from the Conservative Eurosceptics and an end to
consensus.
That Camerons statement had no legal
significance was alluded to in the SCs statement in
Miller (para. 119) that although the 1975
referendum on whether the UK should stay in the
European Economic Community was very similar to
the 2016 Referendum the way in which the two
procedures were characterised by ministers differed.
Whereas the 1975 referendum was described by
Ministers at the time as advisory, the 2016
referendum was described as advisory by some
ministers but decisive by others (although the court
did not expressly refer to Cameron). However, as the
court stressed, nothing material hung on those
conflicting avowals:
Whether or not they are clear and consistent,
such public observations, wherever they are
made, are not law; they are statements of
political intention. Further, such statements are,
at least normally, made by ministers on behalf
of the UK government, not on behalf of
Parliament.
In his statement of January 5, 2016, the PM was
addressing the Commons, not speaking on their
behalf; he was on a frolic of his own (as lawyers
would say) in turning his back on the essentially
advisory character of the Referendum as statutorily
defined. He had no mandate for moving the
goalposts and the advisory status of the slender
majority outcome almost certainly stands to this day.
July 6, 2017
Attempt in Miller to challenge the
advisory nature of the Referendum
In Miller a forlorn attempt to challenge the advisory
nature of the referendum was made on behalf of the
Secretary of State for Exiting the EU. It was argued
that, having referred the leave/remain question to
the electorate, Parliament could not have intended
that on the vote being to leave, the same question
would be referred back to it (para 120). The
submission betrayed a fundamental failure to
acknowledge the inherent purpose of the
referendum, which was not to pass responsibility for
the decision to the electorate but to sample its
opinion. The contention was denounced by the SC as
classic petitio principia, the court pointing out that
the argument assumed what it sought to prove,
namely that the referendum was intended by
Parliament to have a legal effect as well as a political
one.
Building on bootstraps
In Miller the SC held that since the Referendum
result was merely advisory only Parliament could
make the UKs decision to leave the EU through a
clearly expressed Act of Parliament. The ball was
now in Parliaments court but it may be contended
with some force that the one thing which the
European Union (Notification of Withdrawal) Act
2017 did not do was enshrine the result as a
constitutional decision. The Acts only section
provided:
(1) The Prime Minister may notify, under Article
50(2) of the Treaty on European Union, the
United Kingdoms intention to withdraw
from the EU.
(2) This section has effect despite any provision
made by or under the European
Communities Act 1972 or any other
enactment.
Without referring explicitly to a decision, the
Explanatory Notes to the Bill referred (in para 3) to
the result of the Referendum and in para 4 to the
Prime Ministers announcement on 2 October 2016
that the formal process of leaving the EU would
commence before the end of March 2017. The
implication could not have been clearer that the
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referendum result was going to be treated by the
government as the factual event which would
activate the formal process. What was implicit
became explicit with the introduction of the Bill to
Parliament. Shepherding it through the Commons,
Brexit Secretary David Davis explained that it was
merely a procedural measure and was not
. . . 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. (see https://hansard. parliament.uk/
Commons/2017-01-31/debates/C2852E15-21D
3-4F03-B8C3-F7E05F2276B0/EuropeanUnion
(NotificationOfWithdrawal)Act#contribution-
4E407196-E047-424D-8243-C533B5E3647F.)
In the Lords, the Lord Privy Seal, Baroness Evans of
Bowes Park, similarly stated:
This House passed an Act to deliver a
referendum without placing conditions on the
result. On 23 June 2016, the British people
delivered their verdict. The Bill is not about
revisiting that debate; rather it responds to the
judgment of the Supreme Court that an Act of
Parliament is required to authorise ministers to
give notice of the decision of the UK to
withdraw from the European Union
(https://hansard. parliament.uk/lords/2017-02-
20/debates/30224DBB-4C77-4D65-A591-699EB
7F99981/EuropeanUnion(NotificationOfWithdr
awal)Bill)
These assurances to Parliament that the decision had
already been made were simply restatements of
David Camerons original bootstrapping exercise.
Having negotiated his way through the legislative
process the Brexit Secretary now felt fortified in
making the same claim in ensuing White Papers. In
The United Kingdoms Exit from and New Partnership
with the European Union he stated: The people of
the UK have voted to leave the EU and this
Government will respect their wishes (Cm 9417,
HMG, February 2017, p.5). In his Foreword to the
White Paper Legislating for the United Kingdoms
withdrawal from the European Union he stated On
23 June 2016 the United Kingdom made the historic
July 6, 2017
decision to leave the European Union (Cm 9446,
DEEU, March 2017, p.7).
Coupled with repeated utterances, in and outside
Parliament, of the controversial, if not absurd,
mantra that the most slender of majorities (51.9 per
cent of the votes cast but a mere 37 per cent of the
registered electorate, not counting the millions of
disenfranchised expatriates) represented the will of
the people Daviss diverse pronouncements plainly
flew in the face of the clearest possible statement by
the SC that only Parliament could enact the
withdrawal decision and that the Referendum result
was merely advisory a majority opinion of which
Parliament could take cognisance in determining
whether or not formally to enact a withdrawal
decision. (For a detailed break-down of the voting
figures see https:// www.electoralcommission. org.
uk/find-information-by-subject/elect-ions-and-refer
endums/past-elections-and-referendums/eu-referen
dum/electorate-and -count-information.)
Mystery of the governments legal advice
The state of the governments knowledge of the
legalities remains an abiding mystery. However, it is
frankly very difficult to believe that even before the
judgment was delivered by the SC in Miller they
could have failed to appreciate that the majority
vote could not stand as a decision, given the advisory
nature of the Referendum, and that the imprimatur
of an Act of Parliament was needed to convert the
majority withdrawal preference into law. The
judgment in Miller could have left them in little
doubt.
That the Prime Minister seemed so secretively
impervious to inquiry when faced by her own side
with even the gentlest expression of concern about
the possibility of trouble tells against the cabinets
collective navet. In the Commons on March 14,
2017, the veteran Eurosceptic backbencher Sir
William (Bill) Cash, Conservative member for
Stone, asked the Prime Minister whether she had
taken urgent legal advice . . . to be sure we do not
have any unforeseen further attempts to undo the
Bill in the courts, to which Mrs May gave a
dismissive assurance that the government took
appropriate legal advice at every stage but, as she
reminded Cash, they did not discuss it on the Floor
of the House (https://hansard.parliament.uk/com
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mons/2017-03-14/debates/B5826F13-CE59-42DD-
9DE4-ACDEA7E308DA/EuropeanCouncil).
It would certainly be illuminating to learn the
nature and source of the advice the government did
receive and whether they were ever given and
heeded warnings about the need for an Act of
Parliament to enshrine the withdrawal decision.
Certainly the governments legal team in Miller knew
exactly what was required, as is abundantly clear
from the following passage of the Secretary of States
written submissions to the SC (para 14d):
The surprising consequence of the DC
judgment is that, if the outcome of the
referendum is to be implemented, Parliament
must decide to confer a new legal power on the
government to make that decision pursuant to
Article 50(1) TEU and to give notification of that
decision pursuant to Article 50(2) TEU. In other
words, if the UK is to withdraw from the EU,
Parliament must be asked to answer precisely
the same question which was put by Parliament
to the electorate and has been answered in the
referendum, and must give the same answer in
legislative form.
It seems very difficult to accept that the Miller team
could have failed to tender appropriate advice. The
question which must be asked is whether the advice
was either not properly assimilated and understood
or that it was ignored or overruled by someone who
thought that the decision was none of Parliaments
business.
It is of course not wholly inconceivable that those
legal advisers who were directly responsible for
advising the government simply gave poor advice. It
is possible that they were distracted by the key issue
in Miller, that is to say the question whether the
Government could use its prerogative treaty-making
powers to begin the negotiation process with an
Article 50 notice without the need for Parliamentary
sanction. The SC held that the Government did need
an Act of Parliament to authorise notification but did
not in terms tell the Secretary of State to obtain an
Act of Parliament ratifying the Referendum decision,
that is to say converting the Referendum opinion
into a binding decision. On the other hand, they did
made it very clear that the leave result had no
constitutionally binding effect. Yet it would hardly
have been rocket science for even the most junior
July 6, 2017
lawyer in the governments service to pick up on the
point. It ought to have been obvious that the Act
needed to ratify the result in order to validate
notification under Article 50. It would truly be a
wonder if HMG really were so ill-prepared as to rush
out a fundamentally defective bill.
Hijacking by smoke and mirrors
It may be very hard to believe that in the wake of
Miller Theresa May and David Davis could have
remained in blissful ignorance of the fact that David
Cameron had not only enjoyed no statutory mandate
to treat the Referendum result as decisive and
binding but was explicitly precluded from doing so.
The question which must be asked is whether they
were suffering from collective blindness or there was
method in their madness; whether it involved in
effect hijacking (to adopt Richard Birds graphic but
entirely apt term) the advisory nature of the
referendum result by the use of sleight of hand or
smoke and mirrors (or whatever metaphor of
deception one cares to use) in order to bring about a
momentous transformation of our constitution and
our economy.
A surreal conjecture
In my Counsel Magazine article I toyed with a
remote, almost surreal, conjecture as to why the
government might deliberately have omitted to
make the decision binding. We are told that once
Article 50 has been invoked and notice of withdrawal
given there can be no turning back (see Miller, para
26). Supposedly the EU would be unmoved by any
second referendum which rejected the outcome of
negotiations and Article 50 is therefore a one-way
ticket. Once notice is served the Member State must
and will leave. So if the EU offers the UK
unacceptable terms it will be too late to relent and
we shall have no option but to walk away from
membership with nothing but World Trade
Organisation Rules on which to rely. Wags might
therefore ask whether the governments true plan
was to adopt a policy of insurance, to deploy sleight
of hand in all this, intending later on to respond to
the possibility of a bad deal by saying We now find
we never did invoke Article 50 so well stay in the EU
after all, thank you very much. Doubtless the EU
would be only too delighted and so would have an
inherent interest in playing along with the charade
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except that they would also have a motive in
blocking a good exit deal for Britain in order to
pressurise us into staying. The crypto Remainers win
the day. (The same possibility had already occurred
to Richard Bird in his November 1, 2016, blog,
although I was unaware of the fact when my article
was published.)
Such an explanation of the governments
motivation may be far-fetched but this is not to
preclude the possibility that it had also been in the
minds of those who opposed the EU (Notification of
Withdrawal) Bill such as Mr Kenneth Clarke, a
politician and Queens Counsel upon whom there are
few flies. It is difficult to believe that its deficiency
escaped his attention but in his long speech in the
Commons not once did he mention it
(https://hansard.parliament.uk/Commons/2017-01-
31/debates/C2852E15-21D3-4F03-B8C3-F7E05F2276
B0/EuropeanUnion(NotificationOfWithdrawal)Bill#
contribution-E964E0BC-96A2-453F-901D-451528B5
3517). The question which may be asked is whether
he foresaw trouble ahead for Brexit in consequence
and privately rejoiced in the prospect.
Identifying the true motives for
circumventing Parliament
If the circumvention of Parliament was deliberate
there could very well be consequences beyond that
merely in civil law. In order to determine if it was
likely to have been deliberate (rather than
inadvertent) it will be necessary to try to identify
what the motivation could have been, given that to
make the decision legally binding the inclusion of a
one-sentence section in the Bill would have sufficed
(eg, The United Kingdom shall withdraw from the
European Union: see Miller, at para. 122).
There are two possible motives, both self-evident
and simple.
1. Passing the buck. The first possible motive is
arises out of the conjecture that the government
wanted to extract from the Referendum an illusory
pure notion that the decision was the directly
expressed will of the British people, rather than a
decision arrived at through the filter of
representative democracy. In short, the government
looking after the interests of the political class
could pass the buck to the people if Brexit proved
to be calamitous for Britain. Yet in so doing they cast
aside the very obvious fact that 37 per cent of the
July 6, 2017
registered electorate (significantly less if the
disenfranchised expatriates were included in the
computation) could hardly be said to constitute the
collective public desire.
2. Not trusting Parliament to make the decision
Equally it may be conjectured that the government
perceived that they would be left as hostages to
fortune if they asked Parliament to make the
decision. They could be far from sure that there were
not a sufficient number of remainers in the
Commons, unmoved by the mantra of the peoples
will, who would relish the chance to sink the Brexit
ship.
The drunken drivers right of way
It is the job of the Opposition to scrutinise and
challenge government Bills. Yet, the curious
supineness of Labours Brexit lead Sir Keir Starmer,
an eminent Queens Counsel and former Director of
Public Prosecutions, and his team, in the face of the
Bills intrinsic failure to implement Miller by ratifying
the Referendum result suggests a degree of
deliberation in looking the other way. (On the other
hand, Starmer is not unknown to have demonstrated
a lack of legal acumen: see Wolchover, Fishing in
France (2010) Criminal Law and Justice Weekly, 174
JPN No 27, July 3, pp.405-408 and see letter and
response, ibid, Sept 4, 2010.) It may be asked why
they never challenged the governments absurd and
utterly wrongheaded assertion that the Referendum
result constituted the leave decision. On reflection
their failure is perhaps worse than merely not
picking up a legislative deficiency. While some may
forgive the Opposition for living with the demands of
realpolitic going with the flow others, with less
charity, will judge that in an anxiety not to appear
elitist and undemocratic they suffered a collapse of
political will. Having joined the Eurosceptic wing of
the Conservative Party in an unholy alliance of
repeating the mantra of the will of the people,
ignoring the law and breaking faith with millions of
his fellow citizens it will doubtless be of particular
interest to the Labour Party to be reminded that
while 37 per cent of the registered electorate were
allowed to dictate the leave decision for the whole
country, current Trade Union law requires the
consent of 40 per cent of registered members to
sanction strike action (a cogent point made to the
author by Ceri Carlill).
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It may be asked whether Starmer forgot that on
his appointment as DPP years before he had been
fted as one of the realms foremost experts in
human rights law. Instead he seems to have stood
aside in the face of what Ethan Coen in his acclaimed
poem called the drunken drivers right of way.
Argument that Parliament implicitly
made the decision to leave
In any future litigation the government would almost
certainly have to argue that although the two
ministerial statements had asserted that the Bill was
merely procedural and not intended to be the
withdrawal decision because the decision had
already been made by the Referendum result that
was plainly incorrect and the government would
have to resile from them.
Effective notification under Article 50(2) may only
be given if there has been a leave decision under
Article 50(1). To argue that the PM was empowered
to give Article 50(2) notice and thereby embark on
the journey to a treaty of withdrawal the
government would have to argue that in explicitly
authorising the PM to give Art 50(2) notice the EU
(Notice of Withdrawal) Act 2017 also implicitly either
made the leave decision or otherwise delegated it to
the Prime Minister.
In contending that the Act implicitly made the
leave decision or otherwise delegated to the PM the
power to make it on behalf of the UK one matter is
quite certain. It concerned a leave decision not yet
made.
This was in stark contrast to the way in which the
Bill was presented to Parliament by David Davis and
Baroness Evans. The decision had already been
made, they said. The Bill was not about making the
decision. It was about implementing a decision
already and irrevocably made, a point of no return
already passed. From everything that the
government were saying in and outside Parliament
there can be little doubt that Davis was referring to
the Referendum, rather than to a decision already
made by the government in accordance with the
principle enunciated by David Cameron in January
2016. But even if Davis had been referring to a
provisional decision made by the government, that
could hardly have been a point of no return.
The government would doubtless claim that if the
2017 Act did not make or delegate the decision it
July 6, 2017
would have been pointless since, as head of the
government, the Prime Minister was already
invested with authority to give Article 50(2) notice
and Acts of Parliament are presumed to have a
tangible purpose. It follows there had to be more,
the government would be bound to contend. They
would have to argue that implicit in the authority
Parliament granted to the PM to give notice under
Article 50(2) was enactment of the leave decision
itself. They will contend that the Act must be read as
follows, with the bracketed words supplied:
The Prime Minister may notify, under Article
50(2) of the Treaty on European Union, the
United Kingdoms intention [hereby declared] to
withdraw from the European union.
Our future, then, is to be determined by the
inclusion or omission of a mere two words. It may be
asked why it occurred to no one in Government or in
Parliament to seek an amendment inserting them.
The compelling answer is that the vast majority of
Parliamentarians took their cue from the
government: they believed they were not being
asked to make the decision or express the
withdrawal intent.
[Authors note: This section was amended on July 19
and 20, 2017.]
Counter-arguments against implicit
ratification
There are at least five counter-arguments against the
EU (Notification of Withdrawal) Act having implicitly
ratified or made the Referendum result.
1. Pointless statutes are not unprecedented It
would not have been the first time in Parliaments
recent history that through a failure of proper
scrutiny an enactment had sadly proved to be
pointless.
2. No implicit correction of a fundamentally
misleading supposition The government predicated
the Bill on the fundamentally misleading supposition
that the leave decision had already been made (by
the Referendum) and therefore, it would have
followed, they did not need to include in the Bill
provision for enactment or delegation of the
decision. If challenged on judicial review they would
be forced to argue that the effects of their own
deliberate misrepresentation to Parliament can be
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erased simply by reading into the Act implicit words
which they expressly never intended should be there
in order to make the statute do the job which they
had misleadingly claimed had already been done. It
amounts to this. Government ministers go to
Parliament and tell legislators that the Bill is not
about the making of a decision, that the decision is a
fait accompli and is out of their hands. Then, when
inevitably forced, for the purpose of proceedings, to
resile from that assurance the government does an
about face and claims that Parliamentarians were
implicitly asked to make or delegate the leave
decision and somehow did so. To say that the
government cannot have it both ways is putting it
mildly. Alternatively it may be envisaged that the
government would claim that had legislators not
been misled but told that they were being asked to
make or delegate the decision it can be assumed
that they would have voted to do so. The evidential
basis of such an assumption remains unclear. Pure
Alice in Wonderland might hardly be an
exaggeration. [Authors note: On July 10, 2017, this
paragraph replaced the former paragraph captioned
No making of a decision already made, which on
reflection was considered to be inapplicable because
the decision had not previously been made. It was
further amended on July 19.]
3. Parliament must squarely confront the
objective However, the third, rather more important,
objection is based on the now well established rule
(set out in a series of decisions over recent years
beginning with R. (Jackson) v Attorney General
[2005] UKHL 56, and affirmed by the SC in Miller)
that in enacting legislation adversely impacting upon
the fundamental rights of the citizen Parliament
must squarely confront the claimed objective of a
statute in precise and unambiguous language, and
accept the political cost. There is little place for
Delphic interpretation or conjecture on a matter of
such momentous significance and in the absence of
such clarity it would be wholly impermissible to
import into the statutory words the assumption
predicated on erroneous (not to say misleading)
ministerial proclamations. The government had no
prior Parliamentary mandate to elevate the opinion
of 52 per cent of voters into a claim that it
represented an expression of the will of the people.
There was no basis for anointing it as a binding
decision at law.
July 6, 2017
4. The 2017 Act could not have converted the
Referendums status from advisory to binding by a
side wind EURA had restricted the Referendum to
advisory status, an expression of opinion, but no
more. When David Davis told the Commons that the
leave decision had already been made he was
effectively claiming that the 51.9 per cent leave vote
in the Referendum had been elevated to binding
status. Section 1(2) of the 2017 Act provides that the
section has effect despite any provision made
by . . . any other enactment. Yet even if this had
removed the advisory limitation on the status of the
Referendum, this would not have converted the
outcome into binding status by a sidewind. [Authors
note. This section was amended on 19 July 2017.]
5. Parliament ignored SC stricture that a ratifying
Act would be needed In Miller the SC had noted that
implementation of the Referendum result would
require a statute, that Parliament had not yet passed
such a statute and that the briefest provision would
suffice, there being no equivalence between the
constitutional importance of a statute . . . and its
length or complexity (paras 121 and 122). This was
the clearest indication that if Parliament wished to
enshrine the result in law it could do so in one line
(eg, the United Kingdom shall withdraw from the
European Union). That Parliamentarians chose not
to include such a measure in the 2017 Act sadly
shows that they were collectively misled by
erroneous ministerial statements to the effect that
express statutory ratification would be unnecessary.
There can be no basis for inferring ratification from
such wholesale error.
Admissibility of ministerial statements:
Pepper v Hart on ambiguity
A claimant seeking, in pursuance of counter-
argument (2), to show that, having falsely
represented to Parliament that the Referendum was
the decision and that the Bill was merely procedural,
the government should now be estopped from
claiming that the Act implicitly ratified the majority
vote, would necessarily have to rely on Pepper v Hart
[1992] 3 WLR 1032. That was the authority which
created a limited exception to the long-established
rule that courts were not permitted to take
cognisance of ministerial or other statements made
in Parliament. The change gave courts a new
discretion (not an obligation) to consider such
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statements, but only as an aid to interpretation
where the wording of the statute was ambiguous.
For the government to contend that ratification is
implicit would amount to an admission that the
express words of the statute (which on the literal
face of it plainly do not embody the decision) are on
that account ambiguous. To argue that they convey
an additional, recondite, sub-textual meaning to be
deduced from the ministerial statements is a
necessary concession that they are ambiguous, that
is to say in themselves uncertain, in doubt,
indeterminate, equivocal. This would have to be
urged as a condition precedent for persuading the
court to exercise its discretion under Pepper to rule
the ministerial explanations admissible in order to
prove that the government had misled Parliament.
[Authors note On July 10, 2017 this paragraph
passage was revised in the interests of clarity and
moved back.]
Rebuttal of Armstrongs critique of the
Counsel Magazine argument
In his blog (above, p.2) Professor Armstrong
acknowledges that there was a certain logic to my
general thesis but magisterially consigns it to the
phylum of a clever little argument to be dismissed
as misguided. He asserts that the relationship
between Articles 50(1) and (2) is not as I had
depicted, that my mistake was in failing to grasp that
they operate on different levels and that while one
has implications for the other, there is no
automaticity to their legal articulation. His argument
seems to be that whereas Article 50(1) is descriptive
of a formal withdrawal decision under domestic law,
Article 50 procedures apply under EU law as soon as
the European Council is notified under Article 50(2)
of the Member States intention to withdraw. In my
Counsel Magazine Online article I had argued that if
there has been no statutorily binding decision to
withdraw there can be said to be no intention to do
so, the words decision and intention being
synonymous.
Armstrong disagrees, claiming to draw a material
distinction between the formal decision to withdraw
(with which the EU will not be concerned) and a less
formal expression of intention to be notified to the
Council under Article 50(2). Even though there may
an issue under domestic law as to whether there has
been a formal decision the EU will not, he contends,
July 6, 2017
be concerned with that but only with notification of
the intention. Once such notification is given Article
50 is set in train and continues even though there
may be a challenge in UK domestic courts to the
validity of the putative decision.
The problem with Armstrongs argument is that it
requires a discernible intention to have been
evinced, albeit informally, and the crunch question
is identifying its source. It could not have been the
Referendum result because, as already contended,
its advisory nature precluded a bare majority as
capable in law of being deemed per se an intention
of the UK to withdraw. The governments
unwarranted unilateral characterisation of the result
as the will of the people could no more elevate it
into an intention to withdraw than could the Prime
Ministers personal commitment to leaving.
The EU can hardly wash its hands of a real
possibility that there has been no genuine
expression of intention. It would be utterly
irresponsible and an abdication of its duty to the
Member States and the hundreds of millions of EU
citizens to shrug off responsibility and refuse to
suspend the Article 50 process pending litigation or
proper inquiry. To negotiate on the basis of being
misled as to the existence of an intention and
being made aware of the error is undoubtedly
justiciable by the EUCJ.
The way ahead
If the British government are serious about doing
things properly and avoiding domestic litigation and
possibly also a suit brought in the EUCJ to stop the
negotiations they need to take pause. If domestic
litigation is mounted and succeeds there would be
two courses open to them.
1. Seeking belated enactment of a withdrawal
decision They could ask Parliament to enact a
withdrawal decision and then give fresh formal
Article 50(2) notification, with an adjustment of the
timetable if the EU decided that the March 29 letter
cannot be treated as notification retrospectively.
Constituting a clear breach of faith of the 48 per cent
remainers as well as the millions of expatriate British
citizens living inside and outside the EU who were
disenfranchised for the purposes of the 2016
referendum) it would at least offer a technical
solution. This time around the mounting concerns
over the wisdom of continuing the withdrawal
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project might not give the government such an easy
time in Parliament.
2. Fresh binding referendum They could bite the
bullet, suspend negotiations unilaterally, and invite
Parliament to sanction a new, differently but
properly constructed and viable referendum. This
time round it would prescribe a super-majority
threshold (based either on the actual votes cast or
on the totality of the registered electorate) but the
outcome would be made decisive and binding
without any requirement for formal Parliamentary
ratification. Importantly, the large body of expatriate
British citizens living inside and outside the EU would
be readmitted to the franchise in order to
participate. That this should be part and parcel of a
constitutionally cleansed process is the implication
of Mrs Mays undertaking (reiterating a promise
made by David Cameron in 2015) to re-enfranchise
the expatriate element of the electorate, an
undertaking which amounts to an open admission
that the 2016 Referendum gave a false reading of the
will of the British people (https://www. gov.
uk/government/news/government-delivers-on-pled
ge-to-give-back-british-expats-the-right-to-vote.)
Such a renewed exercise would afford a genuine
indication.
There is an argument that repealing the European
Communities Act 1972, listed on the governments
legislative programme in the Queens Speech, could
serve as the withdrawal decision. That Act was the
legislative instrument by which the UK originally
joined what became the EU and its repeal would be
the clear signal of an intention to withdraw from
membership. Formal notification of repeal would
then effectively trigger Article 50 and the EU would
then have to adjust the negotiation timetable.
However, riding roughshod over the 63 per cent of
registered electors who did not express a desire to
leave would, as in the case of a specific Act of
Parliament, amount to a breach of faith and would
also almost certainly put the UK in immediate breach
of our EU treaty obligations, would be putting the
cart before the horse and would in effect be
tantamount to our crashing out of the EU.
All this may be academic. Increasingly diverse
reports have been emerging of a rapidly lessening
appetite for the whole Brexit enterprise among the
majority of Parliamentarians and across the country
as a whole. Mounting a legal case against the
July 6, 2017
government might be the slight push which collapses
the house of cards.
The question of potential criminal liability
It has been argued here that there is an unassailable
case for judicial review of the negotiations with a
view to halting them. But that may not be the extent
of legal process. Incredible as it may seem the Prime
Minister and her ministers responsible for pursuing
the UKs withdrawal from the EU may well be liable
under the criminal law for their mishandling of the
whole issue.
It has been argued here that the official
government misrepresentation of the Referendum
result as a binding decision was highly likely to have
been deliberate and knowing. It is virtually
inconceivable that even if Mrs May and David Davis
and their colleagues had not worked it out for
themselves they were not robustly advised of the
simple legal principles involved. Certainly after Miller
they can have been in little doubt. Yet without
seeking an appropriate Act of Parliament they
purported to activate Article 50 and so initiated the
process of negotiating BREXIT on the basis of a
wholesale deliberate misrepresentation of the
Referendum as the binding decision, in breach of its
limited statutory basis. The question which must
follow is whether such an intentionally unlawful act
can be allowed to pass with impunity.
The Prime Minister and the Secretary of State for
Exiting the European Union are both high officers of
state. They are subject to the most exacting
standards of propriety. For them knowingly to have
acted unlawfully where there can have been no
question of interpretive uncertainty must render
them subject to criminal sanctions. They are
arguably liable to prosecution for the Common Law
offence of Misconduct in Public Office. The offence is
triable only on indictment and carries a maximum
sentence of life imprisonment.
The offence is confined to those who are public
office holders and is committed when the office
holder acts, or fails to act, in a way that constitutes a
breach of the duties of that office. The elements of
the offence were summarised in Attorney Generals
Reference No 3 of 2003 [2004] EWCA Crim 868. The
offence is committed when (a) a public officer acting
as such (b) wilfully neglects to perform his or her
duty or wilfully misconducts him or herself, (c) to
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such a degree as to amount to an abuse of the
publics trust in the office holder, (d) without
reasonable excuse or justification.
Public office holder Executive or ministerial
officers have been held to come within the
definition: R v Friar (1819) 1 Chit.Rep (KB) 702. While
there is no easy definition of the embrace of the
term at the margins it is tolerably clear that the
office of Prime Minister and Secretary of State must
come within the ambit of the definition.
Acting as such The misconduct must occur when
the public officer is acting in that capacity. There
must be a direct link between the misconduct and
the alleged abuse. Here again the test is quite
obviously met.
Wilful neglect or misconduct There must be an
element of knowledge or at least recklessness about
the way in which the duty is carried out or neglected.
The test is a subjective one and the public office
holder must be aware that his or her behaviour is
capable of being misconduct. The present case
would clearly come within the purview of the
offence if the Prime Minister and Secretary of State
were aware as it is contended for the reasons set
out earlier they must have been that construing
the Referendum result as decisive constituted a clear
breach of the terms of EURA, as articulated in the
statute and made crystal clear in Miller. In Attorney
Generals Reference No 3 of 2003 approval was given
to the definition of wilful as deliberately doing
something which is wrong knowing it to be wrong or
with reckless indifference as to whether it is wrong
or not. An act is wrongful if not permitted in law. To
claim that the Referendum result was decisive if it
was plainly known to be incapable of being such
would have been wholly untruthful and therefore
wrong.
Abuse of the publics trust In R v Dytham [1979]
QB 722 Lord Widgery CJ said that the behaviour
must be serious enough to amount to an abuse of
the publics trust in the office holder. Public officers
must carry out their duties for the benefit of the
public as a whole. By treating the result as decisive
when they knew it was merely advisory the PM and
her relevant ministers plainly abused the trust of
those members of the public including
parliamentarians who were thereby led to believe
that that was a correct reading of the statute. It
would certainly have constituted an abuse of the
July 6, 2017
trust of remainers, but even voters for leave can
have had no interest in the government wilfully and
knowingly pursuing a negotiation process which was
and remains invalid.
Gravity In R v Dytham Lord Widgery said that the
element of culpability must be of such a degree that
the misconduct impugned is likely to injure the
public interest so as to call for condemnation and
punishment. In Attorney Generals Reference No 3 of
2003 the court said that the misconduct must
amount to an affront to the standing of the public
office held. The threshold is a high one requiring
conduct so far below acceptable standards as to
amount to an abuse of the publics trust in the office
holder. It is difficult to see how the conduct in
question here could not offend such a standard if it
was wilful and it is difficult to see how it could not
have been wilful.
Likely consequences The likely consequences of
any wilful neglect or misconduct are relevant when
deciding whether the conduct falls below the
standard expected. In Attorney General's Reference
No 3 of 2003 the court observed:
It will normally be necessary to consider the
likely consequences of the breach in deciding
whether the conduct falls so far below the
standard of conduct to be expected of the
officer as to constitute the offence. The conduct
cannot be considered in a vacuum: the
consequences likely to follow from it, viewed
subjectively . . . will often influence the decision
as to whether the conduct amounted to an
abuse of the public's trust in the officer.
Whilst there is no need to prove any particular
consequences flowing from the misconduct, it must
be proved that the defendant was reckless not just
as to the legality of his behaviour, but also as to its
likely consequences. The consequences must be
likely ones, as viewed subjectively by the defendant.
Although the authorities do not say so, likely can
probably be taken to mean at the very least
reasonably foreseeable. It is arguable that likely
may mean probable in this context.
Limitation on the use of the offence In R v
Rimmington, R v Goldstein [2005]UKHL 63, at para
30, the House of Lords held that the use of the
common law offence should be limited to cases
where there is no breach of any relevant statutory
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offence but the behaviour or the circumstances are
such that they should nevertheless be treated as
criminal. It is difficult to see what specific statutory
provision may have been breached (apart from
EURA) by the government misrepresentation. It is
submitted that the offence is admirably suited to
cover the misconduct of the Prime Minister and her
relevant ministers.
The question of motive As in all questions of
criminal liability motive may be relevant in
determining the gravity of a proven offence for the
purposes of gauging the right sentence. However, a
pious motive will not negate culpability if there was a
proven intent to act unlawfully. Moreover, a court
would need to be wary of confusing motive with
guilty knowledge, a distinction which has not always
been appreciated, as is exemplified by the following
passage from the judgment of Abbott CJ in In R v
Borron [1820] 3 B&Ald 432, at p.434:
[T]he question has always been, not whether
the act done might, upon full and mature
investigation, be found strictly right, but from
what motive it had proceeded; whether from a
dishonest, oppressive, or corrupt motive, under
which description, fear and favour may
generally be included, or from mistake or
error . . . . To punish as a criminal any person
who, in the gratuitous exercise of a public trust,
may have fallen into error or mistake belongs
only to the despotic ruler of an enslaved people,
and is wholly abhorrent from the jurisprudence
of this kingdom.
On the other hand, the absence of an identifiable
motive for engaging in an unlawful act may be an
important factor in negating the existence of intent
to do wrong. In the present case a clear motive, has
been demonstrated here (see section captioned
Identifying the true motive for circumventing
Parliament, p. 7, above).
Dishonesty or corruption Closely connected with
the question of motive, the corrupt desire for
dishonest gain is not an essential ingredient of the
offence. Clearly there would be no such allegation in
the present case although the offence may have
sprung from a desire to cling to office.
Would they have taken such a risk? The evidence
of wilful wrongdoing may be virtually irrefutable and
yet all things considered it is not only arch sceptics
July 6, 2017
who might ask whether senior cabinet ministers
would really have taken such a risk, imagining they
could so openly get away with deceiving their fellow
Parliamentarians. In response I would only comment
that I have been asking juries that self-same question
for 45 years and still they have potted my innocent
clients times without number! Perhaps I'm just not
very good at my job. [Authors note: This paragraph
was added on 19 july, 2017.]
Assessing the prospects of seeing charges
preferred There are arguably strong grounds for
contending that in seeking to take the UK out of the
EU knowing that they had no lawful mandate to do
so Theresa May and David Davis (if not other
members of the government) have committed the
offence of Misconduct in Public Office. Whether
however there is any realistic prospect of persuading
the prosecuting authorities to act on a complaint
brought by a private citizen may be in doubt. On the
other hand, were a private citizen to make a
complaint the police would be bound to investigate
it and that could start a public debate which could
have beneficial repercussions for the rule of law.
No parliamentary immunity for criminally
misleading statement Publication of the main article
rapidly generated considerable world-wide interest.
The question has been raised whether the
statements made by the Brexit ministers on the floor
of the Houses of Parliament would be admissible
against them (or any other associated ministers) in
any prosecution for Misconduct in Public Office. The
short answer is that in contrast with civil actions for
libel and slander (in which statements in both
chambers are protected by immunity) Parliament-
arians enjoy no immunity from criminal prosecution
under the Westminster system, a principle which
flows from the fundamental tenet of the British
Constitution that all are equal before the law (see
Dicey, A.V., An Introduction to the Study of the Law of
the Constitution, II, Ch. 4, 1885).
Wasting police time Concerns have been expressed
that reporting the relevant ministers to the
government for the offence of Misconduct in Public
Office might risk prosecution for the offence of
wasting police time contrary to s.5(2) of the Criminal
Law Act 1967. Complainants against ministers in the
present context need fear no risk of arrest or
prosecution for the offence. A person who causes
any wasteful employment of the police by knowingly
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making to any person a false report tending to show
that a criminal offence has been committed is liable
on summary conviction to imprisonment for not
more than six months or to a fine of not more than
level 4 on the standard scale or both. No
proceedings may be instituted for such an offence
except by or with the consent of the Director of
Public Prosecutions: s.5(3). In this case the evidence
of the criminal offence is manifest and it is assumed
that no question is involved here of complainants
making a report which they know to be false. It
might be thought that from the governments point
of view a prosecution would be totally counter-
productive.
The arguments and some of the text of this article
were first published in Counsel Magazine Online on
June 2, 2017.
https://www.counselmagazine.co.uk/articles/article-50-
the-trigger-never-was
Referred to by
Matthew Scott, Oh no, not again . . . theres a
plausible legal argument that Britain has not actually
invoked Article 50, Daily Telegraph, June 13, 2017,
http://www.telegraph.co.uk/news/2017/06/13/oh-
no-not-plausible-legal-argument-britain-has-not-
actually/
and by Chloe Farand, Brexit: Article 50 is an illusion
and was never actually triggered, argues leading
barrister, The Independent, June 22 , 2017,
http://www.independent.co.uk/news/uk/home-
news/brexit-article-50-illusion-never-triggered-eu-
counsel-magazine-barrister-david-wolchover-theresa-may-
a7803596.html
See now also Wolchover, D., Non-Mandated Brexit:
Are the Responsible Cabinet Members Criminally
Liable? (2017) 181 Criminal Law and Justice Weekly,
July 15, pp. 490-495.
Wolchover, D., Criminal implications of Non-
Mandated Brexit: A Postscript, (2017) 181 Criminal
Law and Justice Weekly, July 22, 2017.