Back in June 2017, I wrote something for the UK Constitutional Law Association Blog addressing the argument that the Article 50(2) TEU notification was invalid due to the lack of a ‘decision’ to withdraw in terms of Article 50(1). For the reasons I gave then, I found the argument misguided. But it is an argument that has continued online and is the subject of possible judicial review proceedings. As I set out in an earlier post this week, Brexit litigation has had a mixed reception in the courts. While the Miller case is a clear example of a case getting into court and producing a result for the complainants, others have not fared quite so well. Given the strength of feeling in some quarters that there is an arguable legal point to be addressed, I am taking the opportunity to clarify my own position. I won’t repeat the earlier argument but rather try to spell out the key dimensions of the argument.
If we were reading Article 50 not as a provision of EU treaties but instead as a domestic statute, the idea of a single chronological shift from ‘decision’, to ‘notification’ and ultimately to ‘withdrawal’ would have a self-evident logic to it. According to that logic, the notification and consequential withdrawal would seem to depend on a prior decision being made in accordance with the UK’s constitutional requirements. If such a decision was absent, there might seem to be grounds for thinking that notification and withdrawal were resting on a false legal premise.
Article 50 is not a UK statute. It is a provision of an international treaty. Its purpose is clear. Article 50(1) TEU acknowledges a right in international law for a state to withdraw from a treaty. It also acknowledges that the domestic circumstances giving rise to the exercise of that right are a matter for that Member State and attract whatever constitutional requirements are laid down in domestic law. EU law neither demands nor dictates those constitutional requirements.
Instead the work of Article 50 is procedural and is laid down in Articles 50(2) and 50(3). These procedures are consequential not upon the domestic process giving rise to withdrawal but instead to an EU-level notification made under Article 50(2) TEU.
In this way it should be clear that Articles 50(1) and 50(2) are not stages in a process within a single constitutional order. They are spatially displaced in constitutional terms meaning that there is no automaticity in terms of what happens at EU level in response to what happens at the domestic level.
I say there is no ‘automaticity’ but that doesn’t necessarily mean that EU law would be blind to the circumstances giving rise to notification. If a Member State’s government was acting in a manner that was manifestly unconstitutional and had been declared as such by a competent body – this would principally be the Member State’s own institutions but could conceivably be the EU itself inasmuch as the unconstitutional behaviour was also a breach of the EU’s own values justifying the triggering of the Article 7 suspension process – then there would be grounds for suggesting that the Member State was not legally competent to notify under Article 50(2) TEU.
In the context of the UK’s notification, the assertion is typically not that an unconstitutional decision has been made, but rather that no decision has formally been taken. The problem then for those asserting that the Article 50 notification is not valid would be to show that the absence of a formal decision is itself unconstitutional.
As I made clear earlier, the issue of what is or is not a constitutional requirement in the UK does not derive and cannot derive from Article 50(1). In that sense Article 50(1) does not impose any EU law obligations but rather merely re-describes that any legal obligations can only be those of the Member State’s own constitution. In an unwritten and uncodified constitutional order like the UK, determining what those requirements might be is not without its difficulties.
The UK Supreme Court in Miller was clear that as a matter of domestic constitutional law, the loss of a source of rights that would arise consequential to notification could only occur if Parliament gave statutory authorisation for notification. In that way, the Court may be seen to have understood that the domestic legal effects flowed from notification and so constitutional procedures had to attach to notification. It is true that the Court does at para 131 refer to statutory authorisation for the ‘decision to withdraw from the European Union’. Nonetheless, reading the judgment as a whole reinforces that it is the effects of notification that are at the core of the Court’s concern.
Aside from Miller the question is simply whether UK law imposes any specific requirements on the making of a decision pursuant to Article 50(1) and if so, what sort of procedural or substantive standards need to be met.
Firstly, there was no constitutional requirement to hold a referendum. It was not constitutionally mandated and nor was it a referendum that was required to be held consequential to the European Union Act 2011. Secondly, the referendum was advisory; it was for government to take whatever steps it wished following the referendum. In that respect it was made clear that the government would respect the outcome of the referendum. Thirdly, following the referendum, the government immediately took steps to put in motion the UK’s withdrawal from the EU. But there was no legal framework that dictated how this should occur or when. The European Union Referendum Act 2015 laid down no obligations on ministers as to what they should do in the event of a ‘Leave’ vote and and did not seek to demand that the government formally adopt any kind of decision following the referendum.
In this way, if there is no legal requirement for the government to adopt a ‘decision’ it is simply the case that the UK has no constitutional requirements in respect of a ‘decision’. Inasmuch as there is a decision it is – much like the constitution itself – to be found in a range of documents, practices and institutional changes that are an expression of the government’s policy that the UK is leaving the EU. It might also be said that inasmuch as there is any specific text that embodies the decision it could be the Lancaster House speech in January 2017 or the notification letter itself which embodies the decision. But the point remains that from a domestic perspective, the absence of a formal ‘decision’ is not itself unconstitutional.
The UK constitution operates on the basis that the Government is politically accountable to Parliament for its policy decisions and Parliament legislates to give them legal effect. The Government is accountable to the electorate at a General Election and it is through elections that a new Parliament is elected and Government formed. The UK’s constitution – notwithstanding the rise of judicial review – remains primarily political. Cases like Miller are important, but they should not lead us into a false sense of what the UK constitution demands in legal terms.
All of which leads me back to my earlier blog post this week. We ought not to expect that courts will be in a hurry to give permission for legal challenges to be brought to the Brexit process. If permission is given to allow a new Article 50 challenge to go ahead, I remain of the view that the validity of notification under Article 50(2) is not dependent on a formal decision having been made under Article 50(1). The UK’s constitution does not impose obligations such that the absence of a formal decision under Article 50(1) could be considered to be contrary to the UK’s constitutional requirements. Certainly there are no grounds whatsoever for considering that as a matter of EU law, the Article 50 process that is now underway is vitiated by an error of law.