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 ...