Article 50 decision validly taken: new judgment
R. (on the application of Webster) v Secretary of State for Exiting the European Union
On 12 June 2018, Lord Justice Gross and Mr Justice Green refused permission to apply for judicial review to challenge the Brexit negotiations on the basis that the United Kingdom had, so it was argued, failed to make a valid decision to leave the European Union pursuant to Article 50(1). The Judgment has today (20 June 2018) been publicly released, and is available here.
Permission was refused (both on the papers by Supperstone J, and after a renewed application at an oral hearing by Gross LJ and Green J) on three grounds:
(1) The claim is out of time. As is well known, CPR 54.51 requires a claim form to be filed promptly and in any event not later than three months after the grounds to make the claim first arose. The UK’s notification letter was sent on 29 March 2017. The claim form, however, was not filed until nearly 9 months after the notification. No good reason had been advanced for the extension of time; indeed, Gross LJ stated:
“There is no conceivable – let alone good – reason for extending time. This is a paradigm instance of a claim needing to be made promptly and within the applicable time limit.”
(2) There had been undue delay in bringing the claim such that it would be to the detriment of good administration to hear it (see section 31(6)(a) Senior Courts Act 1981). Gross LJ explained:
“If the claimant was to pursue this claim…then it cried out for a prompt pursuit… The notion that good administration would be assisted by the grant of permission here or that the negotiations would not be derailed is with great respect wholly unreal, not least given the timetable under which the negotiations are taking place.”
(3) The claim is, in the words of the Court, “unarguable”, “doomed to fail on the merits” and “Totally Without Merit”. The Article 50(1) decision, the Court held, was authorised by Parliament in the European Union (Notification of Withdrawal Act) 2017 and was contained within the Prime Minister’s letter of notification.
Permission could conceivably have been refused simply on the basis of the first two grounds summarised above, namely, that the application was out of time and the delay in hearing it would be contrary to good administration. These two grounds are individually determinative – that is, regardless of the potential merits, permission could have been refused on either basis alone. Nevertheless, the Court’s assessment of the relevant Article 50 decision is constitutionally interesting.
The effect of Shindler v Chancellor of the Duchy of Lancaster  EWCA Civ 469 and R (Miller) v Secretary of State for Exiting the European Union [ 2017 ] UKSC 5 was as follows:
(1) The referendum was not itself the decision for the purposes of Article 50(1). The European Union Referendum Act 2015 did not say anything about what should happen if the majority of votes were cast in favour of the UK’s leaving the EU. As such, as a matter of domestic law, it was an advisory referendum: see Shindler and Miller. The availability of an expressly ‘binding’ model was well known to Parliament before enactment of the European Union Referendum Act 2015 (see, e.g., section 1(2) of the Northern Ireland Act 1998), but Parliament chose to legislate for a referendum the outcome of which would not legally require the Government to take, or to refrain from taking, a particular course of action. Nor was there anything in the 2015 Act itself to suggest that the holding of the referendum amounted to the taking of a decision that Parliament would, if it wished to do so, be legally incapable of overriding or reversing.
(2) The referendum was, however, “part of” the UK’s “constitutional requirements” for the purposes of Article 50(1), as Parliament had required a referendum to be held on the question of whether the UK should leave the EU: see Shindler.
(3) Miller concerned the other “part” of the “constitutional requirements” for triggering the Article 50 process. As is well known, the Supreme Court held (by a majority of 8 against 3) that an Act of Parliament was required to trigger Article 50; the Prime Minister had no relevant prerogative power to so act.
An issue that was never fully resolved in explicit terms in the Miller litigation remained, however: when and by whom the underlying decision to withdraw from the EU was taken. This was the legal issue at the heart of the latest crowdfunded action, which Gross LJ and Green J have now answered in Webster.
Whatever uncertainty might have surrounded the issue of when and by whom the ‘decision’ was taken in the immediate aftermath of Miller, the matter was put beyond doubt by the legislation enacted in the wake of the Supreme Court’s judgment, namely the European Union (Notification of Withdrawal) Act 2017. This authorised the giving of notification under Article 50(2). Section 1 of the European Union (Notification of Withdrawal) Act 2017 simply states:
(1) The Prime Minister may notify, under Article 50 of the Treaty on European Union, the United Kingdom’s 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.
As Gross LJ explained, this legislative authorisation in the 2017 Act “plainly contemplated and encompassed the power to take a decision to withdraw and conferred that power expressly on the Prime Minister”.
The UK’s “constitutional requirements” (as required by Article 50(1)) were therefore satisfied: (i) primary legislation required a referendum; (ii) that referendum was held and resulted in a majority in favour of a particular result; (iii) legislative approval of that result was forthcoming; (iv) the Prime Minister was given a (statutory) power to effectively implement that result; and (v) the Prime Minister utilised that power in giving notification. It followed, in the crucial conclusion of the Court, that:
“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.”
It is important to bear in mind that Article 50 does not speak of a formal ‘decision’ having to be made: it speaks of a Member State’s having “decided” to leave in accordance with its “constitutional requirements”. Those requirements – as elucidated in Shindler and Miller – are met, in my view, by the combination of the referendum outcome plus the 2017 Act. What Webster now confirms is (i) that those constitutional requirements were, indeed, met (and comprehensively so) and (ii) that the 2017 Act is to be interpreted as authorising a decision, rather than forming the decision. There was thus no need for any other action to be taken before the Article 50 negotiations could begin, such as an additional Act of Parliament which the applicant in Webster was seeking. Gross LJ – correctly in my view – put it this way:
“I reject the argument that additional formality was required under the UK constitution or that there was any requirement for the Art. 50(1) decision to be in some separate document from the Art.50(2) notification.”
This is undoubtedly correct. Against the background of the Shindler and Miller litigation, the resolution in Parliament during the Miller litigation (in favour of leaving) and the terms of debate concerning the Bill which became the 2017 Act, the notion that the UK’s notification is invalid because no ‘decision’ to withdraw had (yet) been taken seemed remarkably hard to sustain. Indeed, the Supreme Court in Miller stated expressly that only a short Act would be required. The 2017 Act records the UK’s intention – present tense – to leave, and authorises an action (notification) which would be otherwise meaningless without that precondition having been met. There is no requirement in UK constitutional law for the Act to state in bold text something along the lines of “This is a decision” – the meaning of the words used, in the context outlined, have that effect.
What is more dubious, however, is whether it was necessary for the Court to hold that the Prime Minister took the decision. In light of the fact that the Court agreed that no formal “decision” is needed – Article 50 only speaks of “constitutional requirements” – one cannot help but think that it may have been simpler to say that it was the electorate plus Parliament (in concert) that decided to the leave the EU, rather than the Prime Minister. This would have married the concepts of “constitutional requirements” with a “decision”. Nevertheless, it is beyond doubt that a decision has, indeed, been made. The Court has therefore reached the right result. Whether that decision to leave is inherently conditional (as a matter of domestic law on account of parliamentary sovereignty) or unilaterally revocable (as a matter of EU law) are different matters, of course…