Article written by a barrister which I think some people on here may find interesting. * Cindersdad* you may already have seen this as I think we may belong to the same group.
The Prime Minister’s March 29 letter to President of the European Council Donald Tusk supposedly gave notice under Article 50 of the 2009 Treaty on European Union of Britain’s intention to leave the EU, writes our Guest Writer for today, barrister David Wolchover.
But extraordinarily, it did no such thing.
The truth is that there has been no constitutionally declared decision to leave the European Union (decision and intention being synonymous in Article 50) and so nothing of which to give notice.
With no withdrawal decision, there is no mandate for our government to procure a treaty of secession under Article 54 of the Vienna Convention and the negotiations towards that end are unlawful.
What exactly to do about this is now occupying the minds of numerous UK and EU citizens. Litigation demands lots of cash.
The big mistake many people have made is in supposing that the Referendum of June 23, 2016, amounted to a declaration of intent by the British people to leave the EU.
Six months before it took place, David Cameron told Parliament that the result would be treated as final, but this was only because he confidently assumed the majority would vote to remain, and that would be an end of the matter.
In fact, his statement had no legal effect whatsoever.
As constituted by the European Union Referendum Act 2015, the Referendum was merely “advisory” - an expression of opinion to guide but not determine government policy. It was therefore fundamentally incapable of yielding a binding withdrawal decision, whether the vote was 51 per cent in favour of leaving or even 99 per cent.
Only Parliament could enact that decision, as the Supreme Court made crystal clear in the case brought against the Government by Gina Miller.
Following the Miller case the ball was now in the Government’s court, but although the European Union (Notification of Withdrawal) Act 2017 authorised the Prime Minister to “notify, under Article 50(2) . . . the United Kingdom’s intention to withdraw from the European Union,” it gave her nothing to notify since it did not enact a withdrawal decision.
Nor, importantly, was it intended to do so. This is where things gets decidedly murky.
Introducing the Bill into the Commons, Brexit Secretary David Davis explained that it was merely a “procedural measure” and was not “about whether the UK should leave the European Union or, indeed, about how it should do so; it is simply about Parliament empowering the government to implement a decision already made – a point of no return already passed.” (The Lords were told something very similar.)
But here’s the rub. Senior cabinet ministers (and others) knew the Referendum was constitutionally incapable of standing as the decision. Their own Act setting it up had said so and the Supreme Court had unambiguously agreed.
So, what on earth was going on?
Faced with a court challenge the government would be obliged to contend that, in spite of what Parliament was wrongly told, the Bill did in fact implicitly enact the leave decision.
Otherwise, they would argue, the Act would have been pointless since, as Head of the Government, the Prime Minister already had authority to give notice under Article 50. Enactment of the decision must have been implicit, the Government would have to argue, because as a matter of principle statutes are presumed to have a tangible purpose.
For at least three reasons the government have no case.
First, we know of many statutes which have been entirely abortive.
Second, the courts have established the key principle that legislation affecting the fundamental rights of citizens must, as the Supreme Court put it, “squarely confront” the statutory objective with precise words clearly expressing the purported aim.
If the Bill was intended to declare the decision to leave it should have said so in terms. In failing to comply with that requirement it must be presumed not to have made the decision.
The third objection is decisive. The government predicated the Bill on the fundamentally untrue supposition that the Referendum result constituted a leave decision. They did not need to incorporate in the Bill an enactment of the decision, they claimed, because the decision had already been made.
If they should now contend that the Act did, after all, by implication make the leave decision, they would be forced to disavow, or resile from, what they had told Parliament, that the purpose of the Bill was very definitely not to make the leave decision, which had already been made.
They would have to argue that the effects of their own deliberate misrepresentation to Parliament can be erased simply by reading into the Act implicit words which are not there and which they expressly never intended should be there.
This would be for the purpose of making the statute do the job which they had deceitfully asserted had already been done.
Quite apart from the chutzpah involved in such a claim there is an absolutely key objection. It assumes that a majority of Parliamentarians would have agreed to enact the leave decision if they had known that they had enjoyed that option when the Bill was presented, instead of being wrongly assured that the decision was a fait accompli.
There is no evidence to support such an assumption.
To import a decision into the wording of the Act it would have to be read as if it included the bracketed words as follows:
“The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention [hereby resolved] to withdraw from the European Union.”
It may be asked why it occurred to no one in Parliament to ask for the insertion of those two words. The answer is compellingly obvious. They took their cue from the Government.
They were told that they were not being asked to make the withdrawal decision because it had already been made… so they didn’t!
The whole future of our country and of Europe could be decided in a courtroom squabble over the omission or inclusion of two words!
Why did the cabinet knowingly mislead Parliament? There are undoubtedly two reasons.
One, they wanted to pass the buck to the “British people” in the event that Brexit proved to be the disaster which so many are now predicting.
Two, they knew they would be left as hostages to fortune if they asked Parliament to make the decision. They knew there might well be enough remainers in Parliament who would only relish the chance to refuse to make a decision based on the snapshot opinion of a mere 37 per cent of the registered electorate.
An entity that excluded the millions of expatriate UK citizens whom the government late last year conceded ought to be restored to the franchise.
I have demonstrated elsewhere that in knowingly misleading Parliament the Prime Minister and David Davis (and almost certainly others) committed the high crime of ‘Misconduct in Public Office’, an indictable offence carrying imprisonment for life.
Some might ask would they really have taken such a risk? I can only say that for 45 years I have been asking juries that very question, but times beyond number, they have potted my clients. Maybe I’m just not a very good barrister.
But perhaps to clear up the fallout from the Cabinet’s mendacity and utter incompetence the only solution may be to impose on a wearied public a second Referendum. This time it will be made decisive but will require the traditional two-thirds of the electorate (including expatriates) to change the status quo.
• David Wolchover was called to the Bar in 1971 and has practised at the criminal bar ever since, acting exclusively for defendants. Although he says he has never wished or sought to become a QC, he was for many years Head of Chambers at 7 Bell Yard, Temple Bar. He has written a number of leading text books in his field and over nearly 40 years a very large number of articles on law in a variety of journals and national newspapers. He is now semi-retired. More about David Wolchover at: davidwolchover.co.uk/general_info_biog.htm