Action for Europe
Stop Brexit now

Can the EU cancel the Brexit Process - if it wishes?

By Richard Bird
2018-05-21

This is clearly a radical proposal. The purpose of this letter is to seek opinions from EU legal experts and EU Parliamentarians.

Summary

New evidence has arisen. Article 50 Notice was served unlawfully by Theresa May. Her decision did not meet the requirements of Article 50.

Article 50(1) requires a decision to leave to be made in accordance with the constitutional rules of the member state.

Theresa May made the decision personally (Webster ruling of January 2018).

She failed to fulfill her legal and constitutional duty as a Minister of the Crown to make proper assessments and consultation before deciding to serve notice. (Confirmed by Cabinet Office response to Richard Bird's FoI request, January 2019).

She failed the test of Wednesbury reasonableness in making her decision. (Wolchover opinion).

Her decision was unlawful.  The EU has the right to call for proof of compliance with constitutional rules of the UK, or to declare the Notice unlawful and void.

Detailed Case

  1. On 2 March 2017 Theresa May sent a letter to President Tusk, giving Notice under section 50(2) of Article 50 TFEU that the UK will leave the EU.
  2. The lawfulness of that letter was not questioned at the time. However new evidence has arisen since March 2017 which alters the legal status of the purported Notice from “presumed to be lawful” to “seriously questionable”.
  3. May was given authority by Parliament to make a decision to serve 50(2) Notice, should she choose to do so, by virtue of the EU (Notification of Withdrawal) Act 2017, which was passed in its final form by the Commons on 13th March 2017, receiving Royal Assent on 16th March 2017.  (http://www.legislation.gov.uk/ukpga/2017/9/section/1/enacted)
  4. On some unknown date point between those dates and 29th March 2017, in the space of two weeks, May made her decision.
  5. The decision was hers alone. This was confirmed in the ruling in Webster v  Secretary of State for Exiting the EU  on 12 June 2018, see paras 12,13,14,15. https://brexit.hypotheses.org/files/2018/02/CO59292017-Judgment-2828-12-Jun-2018-V4-Final.pdf
    1. Legislation duly followed, in the form of the European Union (Notification of Withdrawal Act) 2017, ("the 2017 Act"), described in the Long Title as: "An Act to confer power on the Prime Minister to notify, under Art.50(2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU."  S.1 is headed: "Power to notify withdrawal from the EU" and, s.1(1) reads as follows:
      "The Prime Minister may notify, under Art.50(2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU."
    2. The change in the law with which Miller was concerned involved invoking Art.50 of the Treaty; in short, a decision to withdraw from the EU, accompanied by notification of doing so.  The legislation was intended to give effect to the decision in Miller.  Its authorisation to the Prime Minister to notify under Art.50(2), plainly contemplated and encompassed the power to take a decision to withdraw and conferred that power expressly on the Prime Minister; there would indeed be no point in notifying under Art.50(2), absent a decision to withdraw under Art.50(1).  
    3. The matter is put beyond argument by the Prime Minister's letter of 29 March 2017, ("the Prime Minister's letter"), notifying the European Union of the United Kingdom's decision to withdraw under Art.50(2) of the Treaty.  This letter in includes the following passage:
      "On 23 June last year, the people of the United Kingdom voted to the leave the European Union [...] that decision was no rejection of the values we share as fellow Europeans [...].
      Earlier this month, the United Kingdom Parliament confirmed the result of the Referendum by voting with clear and convincing majorities in both of its Houses for the European Union (Notification of Withdrawal Bill.)  The Bill was passed by Parliament on 13 March and it received Royal Assent [...] and became an Act of Parliament on 16 March.
      Today, therefore, I am writing to give effect to the democratic decision of the people of the United Kingdom [...]."
    4. Even putting the Referendum to one side, this is the language of decision not of notification alone, in vacuo, so to speak.  The Prime Minister's letter itself contains a decision; backed by the authority of the 2017 Act, that decision complies with the requirements of Miller.  No additional UK constitutional requirements remained to be satisfied.
  6. May made the decision to serve Notice.  Article 50 (1) requires that such decision to serve such Notice is made in accordance with the constitutional rules of the member state.   The English version of Article 50(1)  is ambiguous on this; the official French text is clear:
    "Tout État membre peut décider, conformément à ses règles constitutionnelles, de se retirer de l'Union."
  7. Theresa May in her capacity as PM made the decision personally. But in so doing she was required to fulfil her legal and constitutional duty as a Minister of the Crown to make proper assessments and consultation before deciding to serve such a momentous notice.  This is the long accepted procedure within the unwritten constitution of the UK for any Minister considering a major decision., Did she do so?
  8. We maintain that she failed on all counts. This failure is confirmed by the Cabinet Office response to a Freedom of Information request made by Mr Richard Bird's to the Cabinet Office in September 2018.  Mr Bird made this request:  
    I request under the Freedom of Information Act that you please supply all relevant materials considered by the PM prior to making the above Decision, including:
    1. Impact assessments or any form of assessments covering:
      1. Economic consequences within the UK
      2. Social issues within the UK
      3. The 2010 Equality Act and Public Sector Equality duty
      4. Human rights and civil liberties issues
      5. Social and family issues affecting citizens of the UK resident in other EU member states
      6. Environmental issues within the UK, and outside the UK in so far as they might affect the UK
      7. Food and medical supply issues
      8. The future status of UK citizens resident in Northern Ireland
      9. The future functioning of the devolution settlements and the Good Friday Agreement
      10. The future status of Gibraltar and Crown dependencies.
    2. Plans made for an orderly exit from membership of the European Union to avoid undue harm to the interests of the UK or of its people.
    3. Records of any Consultations made with interested or affected parties prior to making the Decision.
    The Cabinet Office serves the Prime Minister. The official reply on 23 January 2019 was:
    I am writing to advise you that following a search of our paper and electronic records, I have established that the information you requested is not held by the Cabinet Office.
    You may wish to try contacting the Department for Exiting the European Union at this link: foi@dexeu.gov.uk who may be able to help you with your request.
  9. There is no evidence whatsoever of Theresa May having commissioned or studied any assessments prior to making her decision.
  10. There is no evidence whatsoever of Theresa May having undertaken formal or statutory consultations with interested or affected parties prior to making her decision.
  11. Theresa May’s letter was therefore unlawful under the constitutional rules of the UK.
  12. Barrister David Wolchover comments on this in greater detail (Appendix 1).
  13. What can be done? It is too late to contest the lawfulness of the decision made in March 2017 in a UK court, unless such court would be prepared to accept that new evidence merits reconsideration. In any case, there is no time to do so.
  14. But Article 50 is part of a binding international treaty between the parties. It is a form of contract.
    In any contract or treaty, either party has the right to object or seek remedy if they consider the other party has not conformed with the conditions.
    The EU has the RIGHT to question the legality of May's decision, and to demand proof of its lawfulness as a ministerial decision under English law.  If such evidence cannot be provided, the EU should declare that the Notice of 29th March 2017 is null and void.

Appendix 1

Extract from article by David Wolchover, Barrister. “Wake up Westminster! Here’s exactly why Article 50 was unlawfully triggered.
Downloadable in full at http://www.davidwolchover.co.uk

Mrs May’s Article 50 notification letter

Armed with Parliament’s authority to invoke Article 50 Prime Minister Theresa May made her decision on behalf of the United Kingdom to withdraw the realm from the EU and despatched her historic letter to European Council President Donald Tusk on March 29, 2017, giving notice under Art 50(2). In her letter she explicitly stated that she was ‘writing to give effect to the democratic decision of the people of the United Kingdom.’ No reference was made in the letter to any other consideration.

Failure to observe the statutory requirement to consider all relevant factors

It follows from the decision in Webster and from the language of the 2017 Act that the power to activate Article 50 which Parliament delegated to the Prime Minister through that Act was by no means unconditional. The discretion reposed in her was not unfettered.

This is the crux of the whole issue. In following her predecessor’s commitment to implement the referendum result Theresa May acted entirely consistently with her party’s policy from at least as early as the 2015 Manifesto, that a Leave vote would be treated as decisive.

However, acting consistently is not necessarily acting constitutionally or reasonably. As constitutionally established – that is, by statute – the  referendum was not legally determinative of the leave/remain issue, but merely advisory. The fundamental rationale of the referendum, as explained in the HC Briefing Paper, was to give the electorate an opportunity to ‘voice an opinion which then influences the government in its policy decisions,’ not to dictate policy. In explaining the advisory nature of the referendum – that the voicing of public opinion was a factor to be considered and which might be influential in the formation of policy – the HC Briefing Paper simply expressed the fundamental and universal precept of all rational policy-making. The Briefing Paper did not have to be expressly adopted by the government for that principle to apply in identifying the statutory purpose of the referendum. It was a key principle of government by which Cameron’s successor, Theresa May, was duty bound – legally bound – to abide. This was the obligation to scrutinise methodically all tangible factors relevant to the policy to be determined. It is the inherent characteristic of rationality and reasonableness. It’s what right-thinking people do when making personal decisions affecting their own everyday lives. They take account of all tangible and relevant factors as they see it. We don’t buy a car simply because it’s red – not if we’re being sensible and rational. Good governance is no different. It does not blindly and exclusively follow the dictates of political whimsy.

Since therefore the poll outcome was not statutorily determinative of the issue and could be no more than influential in guiding government policy, the normal decision-making process applied by virtue both of EURA and general principles of government and it ought to have been followed, as in any process of rational policy formation. This meant that while the outcome was a factor to be taken into account when determining policy on the leave/remain issue the prime minister (on behalf of the government) was constitutionally – legally – forbidden to make the Article 50 leave decision exclusively on the basis of the referendum result.

The PM’s Article 50 decision required a review of the full range of relevant factors, not simply the one factor, the poll result, even if that was regarded as paramount as a matter of political choice. It implicitly required observance of the conventional and rational government decision-making process: review of all reasonably identifiable relevant factors. To have failed to do so not only violated the declared constitutional purpose of EURA but general principles of good governance.

An absolutely key question is whether the PM’s Article 50(1) decision was exclusively predicated on the outcome of the referendum and by reference to no other factors. Her unwavering public resort to the ‘will of the people’ as the apparently sole rationale for having exercised her delegated power to make the withdrawal decision speaks volumes as to her ignoring of any other considerations. This has been in the face of clarion calls from a host of informed opinion as to the serious adverse political, economic and security consequences of Britain’s departure from the Union. The now seemingly intractable issue over the border between Eire and Northern Ireland is but one problem among many which have been trumped by the overarching mantra of the ‘people’s will’ (that is the 37 per cent of the registered electorate who by an absurdity of arithmetic doublethink have been preposterously conjured into a majority). In a particularly apt comment the referendum has been described as ‘surely the most fetishised vote in modern British political history.’

All the available evidence therefore seems to point to the fact that her original decision flew in the face of EURA and the expectation arising from it that the result would be considered as one of a number of relevant factors in determining the policy on withdrawal.

Yet the Government seem to have made a virtue of silence, of not claiming to have taken account of any of the almost universally negative impact assessments made by their own departments. This is the crunch point, the fundamental defect which negates the legitimacy of the whole Brexit story. It was particularly necessary to take those factors into account given (a) that as a sampling exercise the Leave/Remain difference was statistically insignificant, negating the oft-repeated characterisation of the majority as ‘clear,’ and (b) that the Leave vote was significantly short of amounting to a majority of the electorate.

Democratic imperative determined by constitutional imperative

The democratic imperative was not satisfied simply by implementing the slight tilt of the ballot towards leaving the EU. Comparisons with a football match are puerile. The democratic imperative is contingent on the constitutional imperative, the obligation to observe the laws and conventions of the constitution, predicated here on dictates of reasonable decision-making requiring the methodical scrutiny of tangible relevant factors. Where constitutional imperatives are legal ones they are synonymous with the rule of law. Without the rule of law democracy is meaningless.

‘Wednesbury’ unreasonable

At the risk of repetition, there can be no democracy without law and its observance. Decisions by government which impact on the rights of the citizen but which are wholly unreasonable are by definition unlawful. It was an implicit requirement of the statutory advisory basis on which EURA established the referendum that all relevant factors, including the poll result, had to be considered by government when determining the UK’s policy over continued membership of the EU. To have failed to take into account most at least of the relevant factors would not only have flown in the face of the clear purpose of the referendum but would have offended everyday notions of common sense and reasonableness. The question to be asked here is whether the failure was so unreasonable as to be unlawful. Was the decision of Mrs May and her cabinet to activate Article 50, based exclusively on the advisory-only referendum result so unreasonable as to be unlawful?

It is a fundamental principle of Common law that a person or body having authority or discretion to take a certain course of action or to act in a certain way must, in exercising that discretion, act reasonably within the meaning of Associated Provincial Picture Houses Ltd v Wednesbury Corporation.2 The question which any court would have to ask in determining whether or not Theresa May and her cabinet acted lawfully is whether making the leave decision in the absence of considering any factors save the narrow referendum outcome was manifestly so unreasonable that no reasonable person acting reasonably could have made it, the test in Wednesbury. It is inconceivable that under Wednesbury the decision would have passed muster. It is for that simple reason that the decision was unlawful and was therefore undemocratic.

With the obvious connivance of her cabinet – including the then Foreign Secretary, now Prime Minister – Theresa May deliberately flouted her constitutional obligation of scrutinising the whole discernible picture. The result was that she deliberately acted unconstitutionally and with potentially disastrous consequences she broke the law.

Mrs May was plainly supported and encouraged by her cabinet colleagues and since it may be comfortably assumed that they too had no regard for any factors apart from the referendum outcome it can be inferred that to a man and woman they supported her decision. No doubt this will be confirmed by cabinet minutes to which as yet the public are not privy.

The argument summarised

The reason why the decision to activate Article 50 was unlawful can be summarised in the following series of propositions.

  1. EURA implicitly required the policy decision on leaving or remaining to be informed by all relevant and tangible factors including the referendum outcome
  2. It was implicitly so required by reason of the facts that
    • the government never disavowed the HC briefing paper
    • David Liddington described the referendum purpose as advisory and
    • the Supreme Court in Miller confirmed that the referendum was advisory.
  3. Where, as here, the referendum result was no more than advisory, the decision taken on the basis alone of that outcome offended the constitutional imperative for good governance, namely that in the rational formation of policy all relevant and tangible factors must be taken into account
  4. Applying Wednesbury the failure to take account of any of those factors in determining the policy decision would have been unlawful if disregarding any factors save the referendum outcome was "manifestly so unreasonable that no reasonable person acting reasonably could conceivably have made it.”
  5. This is a fundamental rule of the common law. The constitutional imperative is to consider all relevant and tangible factors. What makes the failure to do so unlawful is Wednesbury. The conventional, reasonable, rational, constitutional requirement to take account of all relevant and tangible factors is a requirement of law if the fundamental failure to do so is "manifestly so unreasonable . . ." etc. The principle is not to be found in any statutory provision whether express or implied. It is the common law which dictates the requirement.

Principle of proportionality

It might additionally be mentioned that  in disregarding all factors save the referendum outcome the Prime Minister failed to comply with the principle of proportionality, an issue separate from Wednesbury reasonableness which applies to cases of alleged breach of the European Convention on Human Rights and EU law.