What is the Government really arguing in the Article 50 litigation? A response to Mark Elliott

Originally published by the Judicial Power Project, October 5, 2016

The litigation on the lawfulness of any Government notification of a decision to leave the European Union without specific prior authorisation in an Act of Parliament is of high legal and political significance. It is therefore right that the submissions of the parties to that litigation are being publicly discussed, with the Government’s skeleton argument receiving most attention so far. Mark Elliott published an insightful and, to a large extent, critical comment. I believe that Elliott’s critique of the Government’s chief argument partially relies on an uncharitable interpretation of the skeleton argument and that in fact the Government’s submission is stronger than Elliott suggests. However, the Government can be criticised for not elucidating their points much more clearly.

I will focus here exclusively on what Elliott rightly refers to as ‘the core issue’, i.e. the question whether, as things now stand, the Government has legal authority to decide that the UK is to leave the EU and to notify that decision for the purposes of Article 50. Elliott believes that the Government has such power, but suggests that the legal argument for this conclusion presented in the Government’s submission is faulty. Why? According to Elliott, the Government suggests that the referendum of 23rd June constituted a decision to leave the EU in the meaning of Article 50(1). I agree with Elliott that this is not the correct position and that Lord Dyson MR had it right in his judgment in Shindler saying that the referendum was only one of the constitutional requirements of a decision to leave the EU. (See my previous comment on Shindler). However, reading the passage of the Government’s case on which Elliott relies, I suspect that the Government’s lawyers would likely be surprised by Elliott’s interpretation.

It is true that the skeleton contains expressions that, when read in isolation, may be interpreted Elliott’s way. In several places the Government repeats (in slightly different wording) the phrase “the UK’s decision to leave the EU, as articulated in the referendum result” (paras 5(3), 9). What is more, the Government states that it “has made it clear that it respects the outcome of the statutory referendum and sees no legal basis to prevent it from giving effect to this” by notifying the decision to leave under Article 50(2) (para 10).

However, in para 12(3), the skeleton is clear that the decision in question is that of the Government (merely “in accordance with the outcome of the referendum”) and that this decision is yet to be made. This is clearly repeated in para 29, where the Government states that both Parliament and the executive are legally empowered to make a decision to leave the EU. Contrary to what Elliott suggests, the Government does not characterise the “the Article 50 process as a purely ‘administrative’ or procedural matter — one that takes effect on the ‘international law plane’”. The Government is careful to characterise in such terms only the giving of notification under Article 50(2), and not the Article 50(1) decision to leave (paras 5(1), 8(2)). In fact, the conflation of the two is what the Government criticizes in the Lead Claimant’s submission (para 9). The Government argues convincingly that the current controversy properly concerns the requirements of lawfulness of any Article 50(1) decision to leave (not it’s notification) and this is how the claimants’ submissions should be charitably read (even though at least the Lead Claimant’s submission is framed in terms of the unlawfulness of notification).

Why such insistence on the connection between the referendum result and the decision to leave? To answer this question, it is helpful to look at the Government’s core case as consisting of two interlocking arguments: a strictly legal argument and a broader constitutional argument. The legal argument is, in short, that as things stand the Government can lawfully decide for the UK to leave the EU. The constitutional argument is that because of the outcome of the referendum the Government is not only constitutionally permitted to make this decision, but it is also constitutionally required to do so. Perhaps it is not proper for the courts to police constitutional (as opposed to strictly legal) requirements of what is, in law, a decision that the Government is permitted to take unilaterally. In that sense one might think that the Government could omit the points it is now making on the link between the referendum and the future decision to leave.

However, the Government is justified in presenting it as significant in this litigation that the referendum constituted a constitutional prerequisite of a decision to leave (as stated by Lord Dyson MR in Shindler). Given the high political salience of this court case, it is right that the Government goes beyond the law and stresses that its (future) decision to leave the EU will be correct also according to extra-legal (and non-justiciable) constitutional standards. Emphasizing the constitutional point undoubtedly adds rhetorical force to the Government’s case. But there is a risk in that strategy that the legal argument will not come out as clearly as it could.

Admittedly, there are places in the Government’s case where the insistence on the constitutional point makes it harder to see the legal argument the Government is advancing. For instance, in the last sentence of para 12(1), the Government suggests that it would not be constitutionally appropriate for the Government or for Parliament to decline to make the decision to leave the EU following the vote to leave in a referendum. My guess is that the counsel for the Government would agree that legally (or at least as a matter of standards that the courts have legal power to enforce) it would be open for the Government and for Parliament not to give effect to an outcome of a referendum. It is true, however, that the Government decided not to include that clarification. Taking into consideration that this case is in a sense being tried also in the court of public opinion, it would be welcome for the Government to clarify their legal position in writing (and in public) before the hearing.