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Is Brexit unlawful unless Parliament approves? (Trigger warning)

You might think so from reports from the usual quarters, including the Grauniad in a piece, which even by the low standards of legal waffle, is utterly devoid of anything approaching a reasoned legal argument. But from their point of view perhaps, job done.

However, some heavyweight lawyers have weighed in with an opinion piece providing some arguments that Brexit would only be lawful if Parliament approved it. And you can imagine their concern that the clearly expressed will of the electorate might be ignored, why the BBC has even picked up this article, letting it be more widely known.

‘…we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament. Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.’

So that was all a waste of time then, and Mr Cameron has resigned for no good reason (from his pov), I hear no one say.

Let’s look at this a bit, (btw my answer is ‘No’).

Article 50 – The relevant provisions of Article 50 read as follows:

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. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Article 50 is part of the Lisbon Treaty, and it is enshrined in law by an Act of Parliament (this Treaty was the one that Mr Cameron gave us that ‘cast-iron’ guarantee of a referendum on, until is was ratified, when it was ‘too late’ to have a referendum.)

Looking at 1, this seems to me to leave the decision to withdraw to the member state, and for it not to be a matter for the EU, and nothing more. If a member state decides to leave, it need only follow its own requirements, i.e. the EU does not presume to over-ride any such mechanism, fair enough, and the decision itself must be lawful, lest a would-be dictator seeks to rush out of the EU on the way to mimicking Belarus.

2 sets out the mechanism for the departing State to notify the European Council. Nothing fancy there, a verbal statement could do it, but a handwritten letter would be polite. “Dear Donald, We are ducking out of the European Union in accordance with the terms of Article 50, this letter is our formal notification thereof, Chauzinho, signed ….”. And then a negotiation starts.

Looking at 3, the Treaties shall cease to apply to the State in question etc. from the date of entry into force of the withdrawal agreement (whenever that might be) or, failing that, 2 years after the notification, unless the European Council unanimously* decides to extend this period (in agreement with the departing state)

(*Pay attention folks, 50 (3) crops up below.)

So if nothing is agreed to extend time, or if we don’t leave earlier, exit is automatic after 2 years. Perhaps the Chilcott committee will find a new task for the next decade or so, negotiating Brexit?

The problem, it seems, is that the lawyers think that the Royal Prerogative is constrained by law, in that the Sovereign (on the advice of her Ministers) can do no wrong, but also cannot do anything that is unlawful such as exercising her Prerogative when Parliament has provided for it to be exercised in a particular way or with prior Parliamentary approval, in which case it is no Prerogative at all, of course.

All very well, but the exercising of Article 50 is simply doing what ‘it says on the tin’, the right to withdraw is inherent in the Treaty, so exercising a right provided for in the Treaty is not (well it seems fairly obvious to me anyway) a breach of the Treaty or of EU law. One might ask, if Article 50 does not allow for withdrawal, what on Earth does it provide for?

But of course, it goes much deeper than that, the exercise of the Prerogative is constrained by Parliament and the law. The first line of attack is to argue that Parliament has to approve a decision to leave the EU.

Is this found in 50 (1) “…in accordance with its own constitutional requirements…” Of course, the UK has no written constitution (moan the Lefties), but the referendum was held by authority of an Act of Parliament, and it was only ever ‘advisory’, i.e. it was legally a pointless exercise, as the outcome mandated nothing, whereas a 2011 Referendum did mandate a change in the law in the event of approval to changes in the voting system, by delegated legislation within the Act. So the Act that provided for this Referendum could have provided for a mechanism for its implementation by its own provisions mandating the Prime Minister to trigger article 50 in the event of ‘Leave’ prevailing, or by requiring another Act (which is necessarily subject to Parliament’s will) to trigger Article 50. The Prime Minister may ignore this Referendum outcome completely, of that there is no legal doubt.

But then again, Parliament has constrained the power of the executive (i.e. the Crown as advised) in relation to treaties. Step forward The European Union Act 2011. This Act is a sort of ‘entrenching’ Act, which sets out various obstacles to Treaty modifications without a referendum in the UK, see section 4.
4 Cases where treaty or Article 48(6) decision attracts a referendum
(1) Subject to subsection (4), a treaty or an Article 48(6) decision falls within this section if it involves one or more of the following—
(a) the extension of the objectives of the EU as set out in Article 3 of TEU;
(b) the conferring on the EU of a new exclusive competence;
(c) the extension of an exclusive competence of the EU;
(d) the conferring on the EU of a new competence shared with the member States;
(e) the extension of any competence of the EU that is shared with the member States;
(f) the extension of the competence of the EU in relation to—
(i) the co-ordination of economic and employment policies, or
(ii) common foreign and security policy;
(g) the conferring on the EU of a new competence to carry out actions to support, co-ordinate or supplement the actions of member States;
(h) the extension of a supporting, co-ordinating or supplementing competence of the EU;
(i) the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom, or the removal of any limitation on any such power of an EU institution or body;
(j) the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom;
(k) any amendment of a provision listed in Schedule 1 that removes a requirement that anything should be done unanimously, by consensus or by common accord;
(l) any amendment of Article 31(2) of TEU (decisions relating to common foreign and security policy to which qualified majority voting applies) that removes or amends the provision enabling a member of the Council to oppose the adoption of a decision to be taken by qualified majority voting;
(m) any amendment of any of the provisions specified in subsection (3) that removes or amends the provision enabling a member of the Council, in relation to a draft legislative act, to ensure the suspension of the ordinary legislative procedure.

Zzzzz…. But nowhere in this Act has Parliament put any brake on the exercise of the notification to leave the EU under Article 50! That right is left untouched, yet it could have been constrained. Furthermore, this Act requires a referendum on certain decisions by Ministers (i.e. the Crown) by Section 6.

6 Decisions requiring approval by Act and by referendum
(1) A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless
(a) the draft decision is approved by Act of Parliament, and
(b) the referendum condition is met.
(2) Where the European Council has recommended to the member States the adoption of a decision under Article 42(2) of TEU in relation to a common EU defence, a Minister of the Crown may not notify the European Council that the decision is adopted by the United Kingdom unless—
(a) the decision is approved by Act of Parliament, and
(b) the referendum condition is met.
(3) A Minister of the Crown may not give a notification under Article 4 of Protocol (No. 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to TEU and TFEU which relates to participation by the United Kingdom in a European Public Prosecutor’s Office or an extension of the powers of that Office unless—
(a) the notification has been approved by Act of Parliament, and
(b) the referendum condition is met.
(4) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (1) as references to a draft decision and for the purposes of subsection (3) as references to a notification….

Try an espresso to stay with me, but furthermore, the Schedule to this Act sets out ‘Treaty provisions where amendment removing need for unanimity, consensus or common accord would attract referendum’.

And here we find, at the bottom, Article 50 (3):
Article 7(2) (determination by European Council of existence of serious and persistent breach by member State of values referred to in Article 2).
Article 14(2) (composition of European Parliament).
Article 15(4) (decisions of European Council require consensus).
Article 17(5) (number of, and system for appointing, Commissioners).
Article 19(2) (appointment of Judges and Advocates-General of European Court of Justice).
Article 22(1) (identification of strategic interests and objectives of the EU).
Chapter 2 of Title V (specific provisions on the common foreign and security policy).
Article 48(3), (4), (6) and (7) (treaty revision procedures).
Article 49 (application for EU membership).
Article 50(3) (decision of European Council extending time during which treaties apply to state withdrawing from EU).

So Parliament has set limits on what Ministers of the Crown may do in respect of the Lisbon Treaty, and has said nothing at all about the exercise of the right to withdraw requiring Parliamentary approval, it has left this area alone. Yet, if the UK were to partake in a decision to change the requirement for unanimity from the European Council when extending time during which the withdrawal mechanism applies to a departing state, this would require a referendum.

Of course, triggering Article 50 and Brexit will still leave Section 2 (2) of the European Communities Act 1972 intact and in force, maintaining the supremacy of EU law in the UK after Brexit, because nothing in Article 50 dis-applying the Treaties would necessarily repeal that section of UK law. But that would leave a post-Brexit Parliament in the odd position of being bound by a predecessor Parliament’s decision to make EU law supreme and limit its power to amend EU law. Would anyone suggest that such a situation would last?

The final arguments against Brexit may well be that to leave the EU is a breach of someone’s Human Rights, and is therefore void or should be stopped, or, alternatively that the decision to leave is a breach of EU law and therefore void.

But of course, by the very nature of the EU, the UK’s courts, even if they were minded to grant an injunction or interdict against notification of Brexit (making it void) cannot constrain the EU or stop it from doing what it wishes, such as showing us the door.

UPDATE 19072016: Court challenge to be heard in the High Court of England and Wales in October 2016.

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46 comments to Is Brexit unlawful unless Parliament approves? (Trigger warning)

  • Mr Ecks

    The scum of the state decided on and rushed the referendum through.

    Had it gone the way they wanted there is not the slightest chance that any legal challenge would even be considered,

    If any attempt is made at using lawdogs to stop Brexit–treason charges all round and repeal of Bliar’s removal of the death penalty for same.

  • In Britain, treaties are of the executive, literally the crown. Parliament would have to insert itself into the picture; it is not there by default. The executive is fully competent to tell the EU that article 50 is started, both de jure and de facto. Of course, someone willing to tell the EU that has to become prime minister, so must win a Tory leadership contest and avoid a no-confidence vote in parliament. or win an election after a no-confidence vote.

  • shlomo maistre

    Mr Ed,

    Furthermore, this Act requires a referendum on certain decisions by Ministers (i.e. the Crown) by Section 6.

    Could you/someone please explain to me (an American) why it says “Ministers (i.e. the Crown)”? Aren’t Ministers selected by the Prime Minister via backroom dealings basically? What does this have to do with the Queen? I thought at most the Queen provides advice on who to appoint but that in reality it’s a rubber stamp? I’m probably misunderstanding something.

  • Mr Ed

    shlomo,

    You are right by being wrong, for this is England and the tacked on bits. In theory, the Queen as Sovereign appoints her Ministers as her advisers, who advise her and carry out the messy business of government in her name. By what we call ‘Convention’, the Queen appoints a Prime Minister, who is officially ‘the First Lord of the Treasury’, i.e. controls government spending and the Prime Minister appoints all the other 100 or so Ministers of various grades (Secretary of State being the highest) and forms a ‘Cabinet’ to decide on major issues with the senior Ministers (all members invited in knowing that they can be sacked in an instant by the Prime Minister).

    Ministers are ‘Ministers of the Crown’ and they are appointed and sacked by the Prime Minister. The Prime Minister is appointed by the Sovereign on the basis that he commands a majority in the House of Commons (and so can pass laws and crucially pass ‘Money Bills’ on spending, the latter cannot be stopped by the House of Lords), and if the Commons does not support a Prime Minister, he by Convention resigns as he cannot get anything done, and the Queen sends for someone amongst the MPs who can command a majority if the House. It’s as if Paul Ryan appointed and ran the Federal Cabinet and Mr Obama would fire him if the House no longer supported him, and then Mr Obama would go off and declare open a shiny new building and make chit-chat.

    The last time in the UK this power was an issue was probably when George VI (the Queen’s father) sent for Churchill in 1940 and asked him to form a government, but the Queen in Australia via her Governor-General (i.e. representstive) fired Gough Whitlam a Labor Prime Minister and effectively (iirc) chose the next Prime Minister under the effectively identical system.

    The Queen only has a problem of there is more than one option to form a government when no party having a majority in the House of Commons, as she then has to choose, but she would normally stick woth the status quo (the party last in power) and invite that party to stay on and test itself by calling a confidence vote on the House of Commons, which if it passes, is job done until further notice.

    And most politicians will strive to avoid putting the Queen on the spot.

  • I’m not sure what’s stopping the UK from just walking away, aside from the desire to negotiate trade deals, etc. Article 50 ought to be a courtesy letter, nothing more. It’s not like they’re gonna invade, is it?

  • Laird

    I’m finding this a fascinating discussion (probably one of the few who does!), because it is helping me to better understand the distinctions between Parliament, the Government and the Crown, as well as the interplay of all those institutions with your unwritten Constitution.

    If I understand this correctly, the Royal Prerogative generally extends to foreign affairs and treaty-making powers (although apparently not exclusively, per the Constitutional Reform and Governance Act 2010). That prerogative has limitations, however, including a prohibition on overturning statutory law. Section 50(1) of the Treaty of Lisbon clearly provides that a notice of withdrawal from the EU must be made in accordance with the applicable laws of the withdrawing country; in the case of the UK this is what gives rise to the constitutional question.

    As I understand it, Mr Ed, your contention is that the European Union Act of 2011, while enacting positive law with respect to certain aspects of Article 50, only specifically refers to section (3), not section (1). That certainly seems to be correct according to the excerpts you cited. But the claim made by Barber, Hickman and King in the referenced article is that other statutes stay the hand of the Crown (and the Government) in this matter. They cite the European Communities Act 1972 and the European Parliamentary Elections Act 2002, portions of both of which (they assert) would be rendered nullities by a unilateral Article 50 notice from the Prime Minister. It would thus seem (to me, anyway) that the crux of the issue is the scope of the prohibition on the Prerogative overturning a statute. Does it reach to mere incidental nullifications of a small portion of a larger statute? BH&K’s interpretation seems to be highly technical, but that certainly doesn’t make it wrong and it can plausibly be argued that constitutional questions should be decided narrowly and technically.

    Do you have a response to their argument?

  • Mr Ed

    Laird,

    Do you have a response to their argument?

    I am happy to oblige. And may I apologise for the turgid post, but there are a lot of weeds that need a napalm enema.

    Short answer: “That’s bollox.”

    Short formal answer: “That is not on point.

    If the UK government chooses to exercise its Treaty rights (and our learned friends do not dispute that the right is in the Treaty of Lisbon or that the Treaty of Lisbon is valid), then the effect is that the Treaties (plural) cease to apply. Put shortly, the Treaty of Lisbon disappears up its own backside taking the others with it, as far as the UK is concerned, so the international obligations of the Treaties no longer apply.

    The 1972 Act would still apply, putting EU law ahead of UK law, so Parliament would remain bound by pre-Brexit law, as Section 2 (2) of the European Communities Act 1972 would still apply to the UK, unless Parliament chose to repeal this restraint on its powers, but the Treaty obligations would have vanished.

    The European Parliamentary Elections Act 2002 would still be on the statute book, but it would be no more relevant than the UK’s legislation relating to Australia after the Australia Act 1986 which finally ended the UK Parliament’s right to legislate for the Commonwealth of Australia and its constituent States and Territories. It is correct that that Act provides for elections to the European Parliament, and in respect of ratifying Treaties, but if anyone holds an election for MEPs, let them do so and trot off to Brussels or wherever that ‘Parliament’ is sitting (it used to move around a lot) and see what reception they get. And we are not talking about ratifying treaties, but exercising rights under one of them that happen to abrogate all of them, as is clearly envisaged to be part of the Treaty.

    It is not the case that the Acts would be rendered nullities, it is just that the EU, as a supra-national sovereign body, would disregard anything emanating from the UK in respect of those Acts. It has been said that the UK Parliament could make it illegal to smoke in the streets of Paris, and in English legal theory that is correct, but the reality is that enforcing such a law would pose a significant problem.

    It is not that the Prerogative is overturning a statute, the Prerogative is the way in which the UK may exercise its rights under the Treaty of Lisbon (which builds on its predecessor Treaties), and if it leaves some laws less than effective, so be it.

    There are plenty of ‘local’ Acts of Parliament enabling e.g. the building of a railway, but once the railway is built, the Act still sits there on the Statute book, it is not void, nor is it repealed, it is just no longer pertinent.

    Tim,

    Perhaps Craig David’s song needs to be a post-Referendum anthem.

  • The following comment is probably no real disagreement with Mr Ed’s July 2, 2016 at 8:49 pm, but just a technicality of word definition.

    If the prime minister advises her majesty that article 50 should be invoked, and the executive then does so, that is normative, not prerogative. Practically speaking, parliament’s likely reaction matters: the Queen would probably ask if parliament would sit still for that (i.e. no enraged remain majority passing a vote of no confidence) and might ask more questions if the prime minister indicated no confidence about that. However parliament is not actually required to vote before article 50 is invoked; acting in accord with the PM’s advice, neither queen nor PM would be doing anything prerogative.

    Were the PM to advise her majesty that article 50 should not be invoked regardless of the referendum result because parliament does not care for it, and the queen were then to order it be invoked anyway, that would be prerogative. However:

    – it is more likely the queen would order a dissolution of parliament and a fresh election.

    – it is more likely still that a parliament that could not support brexit would suffer a vote of no confidence and so a fresh election without the queen having to force it.

    – I think it most likely that a leaver will become leader of the Tories, while Labour will be terrified of an election this year, leading to article 50 being invoked without an election. (But I do not rule out an election – nor fear it greatly.)

  • RRS

    If “Representation Of the People” is to have any meaning in the UK or under British law, the answer to all this walrus wailing should be quite simple:

    by legislatively ordained process the people have stated a determination to “leave.”

    Therefore, whatever and all that is necessary and proper to be done to “leave” should be done.

    If it requires rescission of the 1972 and other Acts, so be it. Do it.

    The politicians and technicians, lawyers and bureaucrats have been able to take all the steps to enter the Community (EEC) and continue in the EU, they can jolly well take all the steps necessary to leave.

    To presume there are powers only to enter and to do what is necessary to continue, but insufficient powers to leave completely would be to sell short the “Representation of the People.”

    No doubt the politicians have taken the people ( and UK law) into a big swamp in what they have now made into the EU; but, completely draining the swamp is not necessary to getting the people out of it.

  • Mr Ed

    Niall,

    The Fixed-Term Parliaments Act complicates matters as it is no longer simply a matter of a simple vote of no confidence in a government leading to a dissolution of Parliament, there is a need for 2/3rd of MPs to vote for such a motion and a built-in breathing space of 14 days for the House of Commons to cobble together support for a Prime Minister.

    If the Monarch were to insist on Article 50 being invoked, we would be in a situation like 1936 and the Abdication Crisis.

  • Laird

    I think I understand your argument, Mr Ed. Statutes such as the 1972 Act don’t so much enact positive law expressing the will of Parliament, as they function as enabling statutes to implement the obligations created by a treaty. If that treaty is subsequently abrogated the enabling statute necessarily has no further effect. But the abrogation of that treaty does not “frustrate the will of Parliament as expressed in a statute” (in the language of the Fire Brigades Union case) because Parliament had no “will” other than honoring the treaty’s terms; nor does it “cut[] across the object and purpose of an existing statute” (in the language of BH&K) because the only “purpose” of the statute was implementing a now-nonexistent treaty. The “extensive system of rights” cited by BH&K was not created by those statutes, but by the treaty itself; the statutes merely implemented them. This argument makes sense to me (but then, I’m not a UK constitutional lawyer).

    But the comment by Niall confused me: what would make such an action “normative” rather than “prerogative”? I guess I don’t fully understand those terms in this context.

    Incidentally, I did read the Guardian article linked in the first sentence of this essay, and agree that it contains absolutely nothing which could, even charitably, be characterized as a “legal analysis.” It is the emotional bleating of a sore loser.

  • For my part, I will never again consider the balance of power between states and the national government (here in the USA) to be a relatively complicated issue 🙂

    I am most appreciative of a comment in reply to a question of mine, in a previous thread: “the Crown may do anything, but mustn’t.” That seems to nicely sum up the situation.

  • Swede

    Straws. And the grasping thereof.

  • Lee Moore

    I think it’s just the Blob trying to fight back.

    In reality if the Cabinet authorised the relevant Minister to activate Article 50 without consulting Parliament, in the extremely unlikely event that the courts entertained a legal challenge, they would require the challengers to offer some actual chapter and verse restricting the Minister’s activation of Article 50. Both as a matter of law, and also because the Supreme Court judges are practical folk and, just like members of the Supreme Court in the US, they know what a lamp post looks like.

    The real danger is a Pro-Remain Cabinet deciding to consult Parliament first, knowing that Parliament might well say no. Unfortunately, a Pro-Remain PM can appoint a pro-Remain Cabinet. And a pro-Remain PM would have no difficulty at all in acquiring a legal opinion from the civil service that a vote by Parliament was necessary. That, after all, is what legal advice is for – to justify what you wanted to do all along.

    I am not as sanguine as Niall about a pro-Brexit PM getting in. I think La May has an excellent chance. However, though I don’t think she’s much use, I don’t think she’s an complete idiot, at least as far as political survival is concerned, and I think – OK I hope – that she can see the political peril of going into the next General Election with the UK still in the EU.

  • Lee Moore

    Mr Ed, referring to the European Union Act 2011:

    So Parliament has set limits on what Ministers of the Crown may do in respect of the Lisbon Treaty

    This is quite true, though it should be noted that the European Union Act 2011 was the Tory response to the Lisbon Treaty having been enacted without a referendum. Not the original banana.

    But it is also worth noting that the original banana, the European Union (Amendment) Act 2008 which was the domestic law giving effect to the Lisbon Treaty itself, ALSO contains a list of things, pursuant to the Lisbon Treaty, that Ministers are not allowed to do without consulting Parliament. Activating Article 50 does not appear in the list.

  • shlomo maistre

    Thank you for the explanation Mr Ed. It seems my general understanding was more or less on target but I appreciate the details.

  • shlomo maistre

    In reality if the Cabinet authorised the relevant Minister to activate Article 50 without consulting Parliament, in the extremely unlikely event that the courts entertained a legal challenge, they would require the challengers to offer some actual chapter and verse restricting the Minister’s activation of Article 50. Both as a matter of law, and also because the Supreme Court judges are practical folk and, just like members of the Supreme Court in the US, they know what a lamp post looks like.

    Yeah, they know what a lamp post looks like, but 48% voted to Remain.

    The real danger is a Pro-Remain Cabinet deciding to consult Parliament first, knowing that Parliament might well say no. Unfortunately, a Pro-Remain PM can appoint a pro-Remain Cabinet. And a pro-Remain PM would have no difficulty at all in acquiring a legal opinion from the civil service that a vote by Parliament was necessary. That, after all, is what legal advice is for – to justify what you wanted to do all along.

    This is indeed an even bigger danger in my view.

  • shlomo maistre

    If the Monarch were to insist on Article 50 being invoked, we would be in a situation like 1936 and the Abdication Crisis.

    The situation would be completely unlike that of 1936 in my opinion. There were substantial religious, moral, legal, and political objections to King-Emperor Edward VIII’s proposal to marry Wallis Simpson. The Church, all political parties, and all mainstream opinion was of the view that such a marriage would be immoral and wrong. Given the opposition of the British Cabinet and other Dominion governments to the proposed marriage, the legal objections were substantial (grounded in the 1931 Statute of Westminster). And the political parties had it in for King Edward VIII because he meddled too often in political affairs, not making it a habit of minding his own domain – the same cannot be said of the current UK’s monarch in my view.

    There might well be political objection to the Queen insisting that Article 50 be invoked, but the religious, moral, and legal objections would not carry much weight at all. The political objection is really salient, though, because that encompasses the political constituency of not just UK’s pro-Remain interests but those of the entire global establishment. What would the Cabinet or Parliament do if they asked the Queen to abdicate for voicing support of Article 50’s activation and the Queen said no? Force her to?

    But on the other hand sovereignty is infallible (and the Queen no longer is, sadly) so if the Queen voices support for Article 50’s activation then Article 50 MUST be activated or the institution of the UK monarchy is permanently besmirched. It is primarily for this reason that it’s extremely unlikely that the Queen will do what must be done to protect the UK’s sovereignty if the next government fails to activate Article 50.

  • Laird (July 2, 2016 at 11:10 pm): “But the comment by Niall confused me: what would make such an action “normative” rather than “prerogative”? I guess I don’t fully understand those terms in this context.”

    If the prime minister advises the queen to do something and she does it and it is an OK thing for the executive to do without act of parliament (which this emphatically is for the reasons well set out by Mr Ed and others), then that is quite normal – just ordinary British governance going on as usual even if the subject is unusual.

    A pretentious commenter might call it “normative” instead of ‘normal’ to show off – 🙂 – and because ‘normative’ is a word sometimes used to contrast with ‘prerogative’ in highfalutin discussions of this kind.

    Were the queen to act against the prime minister’s advice, that would be prerogative. As another commenter said, “The crown may do anything but mustn’t.” I would amend this to “The crown may not do absolutely anything (we are a constitutional monarchy) but may do many things that it ordinarily never dreams of doing”. If it does them, and they are not minor, then the politicians who think they run the country will be very miffed. A prudent monarch would therefore so act only when the public would be very unsympathetic to the politicians and/or the “defend the constitution” argument were very compelling. For generations, the royal family have been brought up to be prudent in this sense.

    Hope that clarifies, Laird.

  • staghounds

    I’ve been saying this since before all the the no-legal-effect votes were counted. There won’t be a Brexit, because the people who procedurally have to make it happen won’t.

    This referendum is like telling your spouse you want a divorce and telling him or her to file the papers. It means nothing.

  • TomJ

    Mr Ed, you’ve misunderstood the FTPA. Before the Act an vote of no confidence did not lead to dissolution automatically; it led to the PM and/or the Government resigning or advising the Crown to dissolve Parliament and call new elections. The PM could also advise the Crown to dissolve Parliament at any time. Under the FTPA the Crown’s prerogative to dissolve Parliament is constrained. An early General Election can only be called if:

    a. The Commons passes a motion calling for an early General Election with a supermajority (2/3 of the House’s total membership) in accordance with subsections 2(1) and 2(2) of the Act, or;

    b. A motion of No Confidence in HMG is passed and not superseded by a Motion of Confidence within 14 days in accordance with subsections 2(3), 2(4) and 2(5) of the Act.

    There is no requirement for a supermajority for a No Confidence vote: I think it could in theory pass on 21 votes given quorum for a Commons vote is 40; I can’t see anything else in Standing Orders or the FTPA itself about special quoracy requirements for a No Confidence motion. This is presumably one of the reasons for the 14-day cooling off period; there is no cooling-off period for a motion to hold an early General Election.

  • Mr Ed

    TomJ,

    Sorry if I have got the FTPA wrong, what I was referring to was section 2:

    An early parliamentary general election is to take place if—

    (a) the House of Commons passes a motion in the form set out in subsection (2), and

    (b) if the motion is passed on a division, the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).

    But I couldn’t be bothered to set it all out as it is OT.

  • Laird

    Interesting article, TomJ. It seems to be an expanded and more thorough explication of Mr Ed’s argument, as well as a refutation of the assertions made by BH&K along the lines I outlined above. Thanks.

    Niall, I don’t find that explanation sufficient. Indeed, it seems tautological: if the PM “advises” the Queen to tell him to do something (here, issuing the Article 50 notice), which she does, and he then acts on her instruction, that circular process somehow makes it “normative”? Your premise is that “it is an OK thing for the executive to do without act of parliament” but that is merely assuming the answer. To get to that point it is necessary to go through steps in Mr Ed’s (and Mark Elliot’s, in the article linked by TomJ) analysis, the conclusion of which is that the action is prerogative. I think your “normative” argument fails.

  • Cal

    Thing is, whatever the Establishment tries to do now, the anti-EU beast — I’m trying to avoid lion metaphors here — has awoken, and has the smell of victory in its nostrils. If they try to block Brexit, they won’t know what has hit them.

  • TomJ

    Still, the arguments may get tested in in court: http://www.ft.com/cms/s/0/83db8e6a-4124-11e6-b22f-79eb4891c97d.html

    Mr Ed – I know which bit you were referring to, but you’d got it conflated with the subsection further on. If my explanation isn’t clear (which is something I can only apologise for) revisit your original link, tick the show explanatory notes box and the expand explanatory notes, which I hadn’t bothered with but set it out quite well.

  • Laird, as per my first comment after Mr Ed’s, I am merely verbally clarifying:

    – Mr Ed’s has established (correctly in my NSHO) that a parliamentary vote is not required for invocation of article 50.

    – Mr Ed’s phrasing could be read as saying that this act, though legitimate, would be prerogative.

    – I was merely clarifying that the act, assuming the PM initiated it, would be normative. Only if done by the monarch against the PM’s advise would it be prerogative.

    For the PM to (formally) advise the queen to do things which are then done is the normal process of UK government in all cases where parliamentary approval is not required, i.e. in all cases that pertain to the executive, not the legislature. The rough US equivalent would be ‘all things the president can do without requiring congressional approval’. If you can imagine calling such things, or some of them, presidential “prerogatives” then you might equally imagine talking about what the UK’s PM can do as executive “prerogatives”, in which case Mr Ed could defend his phrasing (or my misreading of it) – but since that would be normal government operation in each case, I’d claim it was a colloquial rather than correct use of the word.

    The constitutional position of treaties in the UK differs from that of the US. Generally, the US copied the division of powers in the UK. As regards treaties, however, the founding fathers were influenced by Roman conceptions to make treaties law, with the legislature having a role. In the UK, historically, the monarch makes treaties, and if specific aspects of the treaty required legal support, parliament is then involved (so of course, in practice, the treaty is not made if parliamentary support will clearly not be available).

    Thus Obama’s Iran deal, which IIUC is definitely unconstitutional in the US, would not be so in the UK – or not nearly as obviously so (the ending of sanctions or freeing of funds might relate to parliamentary laws).

    Sorry to have made a bit of a mountain out of a molehill. I was just commenting on the meaning of prerogative, not disagreeing with Mr Ed on the substance.

  • Laird

    Unfortunately, TomJ, that Financial Times article is behind a paywall.

  • Laird

    Thanks, Niall. I guess my not growing up in the British system, and being inculcated in its nuances, is inhibiting my understanding. I had thought that the PM’s power (as executive) is derivative of the Queen’s (as monarch), but I guess that’s not correct. No matter, I suppose, but I find this interesting.

    Incidentally, I agree with you that Obama’s Iran deal is unconstitutional. By any rational definition of the term it is a “treaty”, which requires ratification by a 2/3rds majority in the Senate, but that minor detail was finessed by an unconstitutional (and wholly idiotic) bill. However (and this gets back to the FT article TomJ just linked, which from the title appears to be about certain businessmen planning a legal challenge to Brexit), in the US no federal court would recognize an ordinary citizen as having “standing” to challenge the Iran deal. Only a sitting Senator (or, possibly, the Senate as a body) would be so recognized, because it is only the Senate whose “rights” have been violated. (Incidentally, none of them has indicated any inclination to do so; I’ve written and specifically asked them about it.) I’m curious whether the British courts are so restrictive: would they recognize the “standing” of businessmen (or any ordinary citizens) to maintain such an action?

  • Laird

    Sorry, TomJ, still no joy. But thanks for trying.

  • TomJ

    The law firm apparently bringing the case mentioned in the article ha made a statement.

  • TomJ

    And some comment on said statement from an occasional legal commentator for the FT firmly outside their paywall.

  • Mr Ed

    TomJ,

    This challenge is fascinating, the whiff of sanctimonious Lefty bollox comes off the screen, and they appear to be soliciting support (i.e. donations) on the site. It reminds me of Amnesty F***ing International (proven race discriminators for refusing to let people work on their country of origin) challenging the decision to let Senator Pinochet leave the UK by judicial review BEFORE the decision had been taken (they failed), demonstrating that the rule of law is an alien concept to them.

    And as I have said, unlike the Mosleyites who support Remain (Moseley campaigned for a European Union AFTER WW2!), at least Pinochet respected the outcome of the Referendum he called, unlike Cameron, who cannot bring himself (so far) to act on the outcome of the referendum he called.

  • Hoping to have something to say on this, I started looking at coronation oaths. I see that the path William and Mary took contained :

    I, A. B., do swear that I do from my heart abhor, detest, and abjure, as impious and heretical, this damnable doctrine and position that princes excommunicated or deprived by the pope, or any authority of the see of Rome, may be deposed or murdered by their subjects, or any other whatsoever. And I do declare that no foreign prince, person, prelate, state, or potentate has, or ought to have, any jurisdiction, power, superiority, preeminence, or authority, ecclesiastical or spiritual, within this realm. So help me God.

    But the oath QE2 took did not contain this clause. Anybody know why?

  • Laird

    The fun is just beginning! Note that the firm which is bringing this “action” (whatever it is) has brought in as counsel the same Tom Hickman who is one of the authors of the article which sparked this whole thread.

    Jack of Kent speculates that this is (or will be; we don’t know if anything has actually been filed yet) some sort of declaratory judgment action, which seems probable; at this stage what else could it be? But that brings up my last question: would the “group of clients” (“businesses” per the FT headline*) be seen by the court as having standing to maintain the action? Especially where accepting the suit is entirely discretionary with the court, and this such a politically-charged and high-profile matter? I would expect a US court to duck it before the ink is dry on the pleadings**, but how is a UK court likely to react?

    * Nominal plaintiffs, would be my guess. This smells like something a predatory plaintiffs law firm would do in the US when seeking to have case certified as a class action. They find a nominal plaintiff to lend his name to the case, but in reality it is just an exercise in lawyer enrichment.

    ** On any number of bases: lack of standing; lack of jurisdiction; wrong venue; lack of ripeness; speculative in nature; probably a half dozen more if I put my mind to it.

  • Mr Ed

    Wh00ps,

    The Coronation Oath is set out in law, from the Glorious Revolution, it appears that the current monarch may have varied it without authority., but it might not be the version that you are working too.

    I cannot imagine the Heir to the Throne being happy with this oath should his turm come.

  • Mr Ed

    Wh00ps,

    Whereas the late King James II, by the assistance of diverse evil counselors, judges, and ministers employed by him, did endeavor to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom:

    Too pertinent for comfort.

    Edgar’s oath seems satisfactory:

    First, that the church of God and the whole Christian people shall have true peace at all time by our judgment; Second, that I will forbid extortion and all kinds of wrong-doing to all orders of men; Third, that I will enjoin equity and mercy in all judgments.[1]

  • Oh yes. Far too pertinent for comfort. In any case, the oath Mrs Queen took seems to be closer to that in your link than the oath I found, which is odd considering that statute dates from then, and I have seen the foreign potentates bit mentioned on a lot of the more oddball websites that exist.

  • Laird, July 3, 2016 at 5:50 pm: ” Thanks, Niall. I guess my not growing up in the British system, and being inculcated in its nuances, is inhibiting my understanding. I had thought that the PM’s power (as executive) is derivative of the Queen’s (as monarch), but I guess that’s not correct. No matter, I suppose, but I find this interesting.”

    As regards the formal constitution, you are 100% right that the PM’s executive power derives wholly from the monarch. The queen has a regular meeting – at which she insists everyone stands, so people get through their business fast – with the PM and other ministers as needed, at which she gives formal approval to whatever is being done. It is unconstitutional for the PM to fail to inform her or to refuse to listen to any advise and warnings she may give. Any advise and warnings are given in regular private meetings with the PM – at which he gets to sit – and all twelve PMs she has had so far have commented that the wonderful thing about her majesty is that, unlike all their treacherous cabinet colleagues, she never leaked to the press.

    The ‘can do anything but mustn’t’ remark quoted earlier relates to the fact that in practice a PM needs a working parliamentary majority and so accepting his advice is how we avoid what in the US is called gridlock.

    However I note that this thread may be overtaken by events. It is reported that senior Leave campaigners are suggesting that the UK exit the EU before the end of this year by parliamentary vote. Under our constitution, the Queen-in-parliament can indeed do not quite anything but certainly a great deal, and is a good deal less subject to any “but mustn’t” qualification.

  • Actually, IIRC, the “all stand” meeting is the one where the royal assent is given. The private meetings with the PM are where much purely-executive stuff gets reported and approved. Anyway, thanks for expressing interest; I should quit before my nit-picking detail exceeds any possible interest. 🙂

  • Mr Ed

    Just a thought, and thanks to Ferox for inspiring me to write this turgid post. There is a line of argument that Section 2 of the European Communities Act 1972 gives rise to an obligation to implement EU law and that this would be negated by withdrawal. The post saying that an Act is required contains this:

    The obvious intention of the Act is to provide for the UK’s membership of the EU and for the EU Treaties to have effect in domestic law. The purpose of triggering Article 50 would be cut across the Act and render it nugatory. Once a withdrawal agreement took effect, or if not deal was reached, the 1972 Act would be left as a dead letter. It would instruct judges to apply the Treaties which themselves declare they had “ceased to apply” to the UK. Indeed, there would not be any need for Parliament to repeal the 1972 Act once the Article 50 process was completed because there would be no remaining rights and obligations for the UK under the terms of the EU Treaties.

    However, the entrenching Act that makes EU law supreme, the European Communities Act 1972, contains at 2 (1) the following provision:

    2 General implementation of Treaties.

    (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression [“enforceable EU right”] and similar expressions shall be read as referring to one to which this subsection applies.

    So using the right under Article 50 of the Lisbon Treaty to withdraw is to be given legal effect without further enactment, by virtue of the very section they say cannot be by-passed.

  • John B

    Leaving aside the technical niceties…

    Above all the Queen and her Ministers must conclude and decide accordingly whether doing or not doing something will leave the Country governable, cause riot or civil conflict/war. Britain is still, just, a Common Law society of law and Government that must adapt to circumstances.

    Trying to thwart Brexit raises the possibility that the Country will become ungovernable, and the notion that everyone can go off and vote again in a General Election or whatever, will not work because 17.5 million people will ask what is the point of voting when nobody takes any notice.

    And, the Remainders having fired all their big guns loaded with skyfall, doom and disaster, it can now be seen none of these dooms have any basis as the sky did not fall, Countries are lining up to do trade deals, the Germans and even the French are cooing sweetly, the banks and big business are not packing their bags.

    That 17.5 million is now probably a lot higher.

    At worst if Mishmash and Rainware are technically correct, then an emergency motion before Parliament where members will understand they had better pass it or find themselves strung up on lamp posts is very likely to pass, very quickly.

  • Paul Marks

    The United Kingdom will leave the European Union.

    And the European Union is going to fall apart anyway.

    It is yet another failed effort to recreate the tyrannical “unity” of the late Roman Empire – of the Emperor Diocletian and co.