By Richard Bird
This is clearly a radical proposal. The purpose of this letter is to seek opinions from EU legal experts and EU Parliamentarians.
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.
"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."
"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 [...]."
"Tout État membre peut décider, conformément à ses règles constitutionnelles, de se retirer de l'Union."
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.
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.
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.