Overseas Chambers of Peter Harris

Maison de la Boucterie
Rue de la Boucterie
Saint Saviour
Jersey, JE2 7ZW

Brexit - Decisions, decisions! As a matter of legal interest , what Decision?

October 21st 2016

The question arises that if you are notifying a decision, it normally has to be evidenced to have been taken as one, in some shape or form.

Unless of course the referendal result was a "decision" at Constitutional law capable of being notified? That is what was presumed, somewhat stupidly by the European Parliament in European Parliament resolution on the decision to leave the EU resulting from the UK referendum (2016/2800(RSP)): ...

"4. Points out that negotiations under Article 50 TEU concerning the UK's withdrawal from the EU must begin as soon as formal notification has been communicated;

5. Warns that in order to prevent damaging uncertainty for everyone and to protect the Union' s integrity, the notification stipulated in Article 50 TEU must take place immediately; consequently asks the UK Prime Ministerto notify the outcome of the referendum to the European Council of 28-29 June; this notification will launch the withdrawal procedure;"

That presumption is patently false. However that is where the influence of doubt sets in and skews the debate into a competition between comparative anxieties, as opposed to law. It is clear that, at best, the European Institutions have been as equally taken aback by the result, and are functioning in a form of anxiety that an only be resolved by legal certainty. Hopefully calmer thinking will have set in during this autumn. However given the inherent rhetoric as between Farage and the EP, that hope may be secularly pious as to its beneficial effect on the negotiations

The error made by the European Parliament in inferring that the article 50 Decision had already been made is indicative of the insecurity felt over what in fact are relatively straightforward matters of the allocation of constitutional competence within the United Kingdom. That that Ministerial competence does not extend as such to the Channel Islands and the Isle of Man is another issue entirely. One can only assume that the appropriate constitutional request from Her Majesty's Government (HMG) to the relevant Constitutional authorities in the Crown Dependencies has been made, and any appropriate conditions or requests made by the Crown Dependencies have been taken into account. Note that despite the offer being made of a vote, the Crown Dependencies, respecting their own independence from Parliament and the United Kingdom in this area abstained from accepting.

The next set of "steps" are set out in relation to the inevitable conclusion to show exactly what stultifying and emasculating confusion arises when attempts to analyse the situation from a position of non-law, in other words assumption rather than a given principle.

It may be that a referendum now has a constitutional quality presumed to exist by article 50, if only by reference to the majority of 52% of those voting, as being distinct from the Parliamentary or executive process, but that is not the case in relation to its status as being anything more than a step in that process as a form of advisory mandate.

To treat it as a decision would be a curious evolution, and one to which the High Court may yet direct its intention, despite all parties before it seeking to elude the issue for the sake of their submissions and therefore argument.

Should the High Court, out of constitutional deference to the separation of powers, inquire of its fellow Court of Parliament e.g. the Speaker, a cleric at the, Library or some other scribe there as to whether the Referendum proposal presented to Parliament by the Government could be considered as a decision making process by Parliament or not? I think that the United Kingdom Constitution is sufficiently clear to treat such a proposal as incongruous and impertinent.

The fact that the MP's Briefing by the Parliamentary Library -as Parliament is a Court, this Library has a form of jurisprudential status - stated categorically in its initial Briefing Paper at is §5.1 that the Brexit referendum was advisory, is an obstacle that the Government has yet to address in its face. That position was confirmed by the Library in a shorter Briefing Paper n° 07591 of 17th May 2016 . However, at law, the Government may not need to face it.

The EU Council receiving the notice of a decision has no jurisdiction to assume anything when it comes to a Member State's constitutional process. It has to take it as read; but quare whether a serious breach of democratic process might enable the Council to refuse it. Has there been? The answer has to be no. There has been a democratic consultation by a Referendum enacted by the United Kingdom Parliament - I stress not the Crown Dependencies- however politically ill judged the UK process may have been. The Referendum is not changed by some occult deviancy into a legal decision simply by HMGov's promise to respect it and implement it. In order to respect the vote, the decision to implement it in the matter of a Treaty has to remain with HMGov, therefore here the Prime Minister as the head of the body of Her Majesty's Ministers.

As Professor Elliott points out, neither does the European Parliament have the authority to consider that mere service of the result of the referendum upon the European Council constitutes service of a decision, as defined under article 50 or elsewhere, as that is not part of the constitutional procedure of the Member State concerned - whence my title Decision, decisions, .... What decision?

I see no point in summarising his statement : "What is abundantly clear is that the Article 50 starting gun can be fired only by a decision taken by the UK, in accordance with its national constitutional arrangements, to withdraw from the EU. What is also abundantly clear is that the "decision" made by the people of the UK in the referendum is not a "decision" for the purpose of Article 50. The European Parliament, in a resolution adopted on 28 June 2016, therefore fell into error when it said that if - as it thought he should - the Prime Minister were to notify this week's European Council of the "outcome" of the referendum, that "notification" would "launch the withdrawal procedure". By eliding the "outcome" of the referendum and an Article 50 "decision" to withdraw, the European Parliament implied that the Prime Minister would initiate formal withdrawal merely by communicating the referendum result to the Council. That is wrong."

Whence the perils of enabling foreign institutions to make assumptions, as a good many do, that their indigenous principles apply elsewhere without the courtesy of elementary consideration of their limitations. I note that certain German advisors are already falling into this trap, and will doubtless take others with them. Speaking English fluently, and all honour to them that they do, unfortunately does not carry the full signification of the terminology and structure of the legal culture underlying it. That is the issue with most international legal advice. taking a shortcut in understanding leads to distressed balance sheets, let alone stressed lawyers and accountants!

Were Her Majesty's Government to notify the referendum result as an article 50 notification as an action of courtesy of the executive in international matters, on the basis of the Referendum result, would that not mean that a Referendum, despite Parliament having been advised by its own internal jurisprudential base that it was merely advisory, would acquire a constitutional status independent of the manner and style in which it has been presented to Parliament approving the Act enabling it to take place? Opos.

Should the High Court now be moved to enquire of Parliament out of courtesy as to whether a decision making capacity was granted either to the demos, or to HMG on the basis of the vote?

Not sure that it will, nor that it needs to. There is equally strong if not stronger argument that whilst any decision may not have been taken by the Referendum as a purely advisory mechanism, the actual Prerogative to take the Decision lies still with HM Government and is to be exercised as a decision by the Prime Minister: see Professor Mark Elliott's cited erudite analysis "On why, as a matter of law, triggering Article 50 does not require Parliament to legislate". That means that the Decision itself, as such, which triggers the Article 50 notice has not yet been taken. The Government, here the Prime Minister has, with the acquiescence of Parliament by the enactment of the Referendal process, the democratic "mandate" to take the Decision to leave as part of its Treaty prerogatives, and file the corresponding notice with the European Council.

That said, in substance, that marries well with the inherent principle of the Withdrawal mechanisms inserted int the European Union Treaties, not the EC Treaties, namely that the United Kingdom will be negotiating, once the Decision notice is filed, as a Third State, not as an EU Member State. see my other posting for material on that point. The United Kingdom will however remain a Member State with those prerogatives for other matters than the withdrawal, and the Crown Dependencies their current legal status under the Third Protocol comprising the arrangement.

Whether there is enough pottery left intact in Staffordshire for a real old fashioned Athenian democratic vote may therefore be irrelevant to the taking of the Decision.

That is why the LCJ has been attempting to extract by hook or by shepherding crook argument and submissions in this area from Counsel in the current litigation in the High Court. The obstination of Counsel in eluding this is simply to keep powder dry for the inevitable appeal to the Supreme Court. My view that this is not the correct appellate body, but the Judicial Committee of the Privy Council was based on the latter's historic constitutional competence over Constitutional matter. I stress that fact that the United Kingdom Government is acting outside the unilateral scope of its Crown en droit prerogative in relation to the Crown Dependencies, and possibly the Overseas Territories, may require the assent of the former, and perhaps also from the latter as well. It would be wiser not simply to let this through ad nutem - on the nod - as British Islanders are collectively a litigious bunch!

However, coming closer to home, both the Channel Crown Dependencies' and the United Kingdom's position in relation to Euratom means that now may be the time to assess the Channel dumping of waste and the leaks from the French Nuclear plants in the Cotentin ...