Decisions in high places

I À la recherche de la décision perdue

(with apologies to Marcel Proust)

According to para 5 of the explanatory notes to the European Union (Notification of Withdrawal) Bill:

“The procedure for withdrawing from the European Union is set out in article 50 of the Treaty on European Union (‘TEU’). The first step in the procedure is for the member state that has decided to withdraw to notify the European Council of its intention (article 50(2)).”

It may be suggested on the contrary that the first step in the procedure is for the member state to comply with article 50(1) TEU.

Article 50(1) provides: “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.” 

It follows logically from the recent Supreme Court Miller judgment [2017] UKSC 5, delivered on 24 January 2017, that the decision to withdraw from the EU in accordance with the constitutional requirements of the United Kingdom is a matter for Parliament. Clearly the Supreme Court regarded the 23 June 2016 referendum as being advisory only from a legal point of view, its importance being political – seemingly neither more so nor less so than the Sewel convention.

Article 50(2) TEU sets out what happens once a member state has decided to withdraw – namely that it shall notify the European Council of its intention.

The bill now before Parliament provides in clause 1(1) that “The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.”

Left to implication?

It has been pointed out by Jolyon Maugham that the bill authorises the Prime Minister to notify the decision but says nothing about who actually makes the decision.

In the House of Commons Library Briefing Paper No 7884 of 27 January 2017 concerning the European Union (Notification of Withdrawal) Bill, the question is posed, at para 2.2, whether the bill is “bombproof”. The paper cites the statement of David Davis, the Secretary of State for Exiting the European Union, when responding in the House of Commons on 24 January 2017 following the judgment in Miller:

“It will be the most straightforward bill possible to give effect to the decision of the people and respect the Supreme Court’s judgment. The purpose of the bill is simply to give the Government the power to invoke article 50 and begin the process of leaving the European Union. That is what the British people voted for, and it is what they would expect. Parliament will rightly scrutinise and debate this legislation, but I trust that no one will seek to make it a vehicle for attempts to thwart the will of the people or to frustrate or delay the process of our exit from the European Union.”

It is to be noted that the Secretary of State continues here to treat the referendum result as if it were itself the constitutional decision – despite the conclusion of the Supreme Court to the contrary in ruling that it was purely advisory. The question thus remains as to whether the notification authorised by the present bill is on analysis no more than the notification of the result of the June 2016 referendum, rather than of a decision under article 50(1).

Maugham poses the question: Perhaps the Government thinks that Parliament, should it authorise the Government to notify, is implicitly making a decision?

According to para 1.2 of the House of Commons Library Briefing Paper: “The power in clause 1(1) represents the legal basis for giving effect to the result of the referendum held on 23 June 2016.” One is once again driven to reflect that since triggering article 50(2) sets in train (in the words of the briefing paper at p 7) enormous constitutional, legal, political, social and economic changes, the Government through the medium of Parliament might have been expected to grasp the nettle of converting the advisory verdict of the referendum into a legally binding decision. The majority of the Supreme Court indeed ruled (see para 121 of the judgment) that if a referendum result necessitated changes to the law in order to be implemented, the UK constitution requires that the change be made through parliamentary legislation.

Arguably the bill as it stands is, in a manner of speaking, something akin to the smile on the disembodied face of the Cheshire cat, instrumental nevertheless, once having transmitted the notification it is brought into existence to impart, in having its inevitable effect. It was of course precisely because the giving of notice inevitably triggered changes to domestic law that the Supreme Court made its majority ruling that it would not be legal for the Government to use prerogative powers to issue the article 50 notice.

II Does Sewel apply here?

The bill conferring power on the Prime Minister to give notification under article 50(2) (which as indicated above, presupposes a decision to withdraw having been come to compliant with article 50(1)), has given rise to controversy as to whether or not it requires a legislative consent motion pursuant to the Sewel convention.

As set out in the summary concerning devolution issues at p 5 of the House of Commons Library Briefing Paper referred to above, the Government has said that no such motion is required.

Domestic effect

It is clear that international relations fall outside the competence of the Scottish Government under the existing devolution settlement. However it is equally clear that the reason why the Supreme Court ruled that notice under article 50 could not be given under the authority of the royal prerogative was, as noted above, that the giving of the notice would change domestic law. (See paras 86 and 94 of the majority judgment.) The argument may thus be made that as the giving of notice under the bill under discussion will have the like effect in regard to domestic law including that of Scotland as would a notification given pursuant to the royal prerogative, it indeed falls under the ambit of the Sewel convention. It would so fall for precisely the same reasons as have led to the launching of the bill now before Parliament as opposed to utilising the royal prerogative in triggering article 50.

It is for this reason that one may view with caution para 9 of the explanatory notes to the bill, which asserts that: “The bill does not contain any provision which gives rise to the need for a legislative consent motion in the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly.”

At para 7.3 of the briefing paper it is observed that having concluded that the Sewel convention was non-justiciable, the Supreme Court did not need to decide whether the article 50 legislation would fall within its scope. At para 130 of the majority judgment of the Supreme Court, it was certainly noted that the devolved legislatures did not have a parallel legislative competence in relation to withdrawal from the European Union. The judgment continues: “The EU constraints are a means by which the UK Parliament and Government make sure that the devolved democratic institutions do not place the United Kingdom in breach of its EU law obligations. The removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced. In the absence of such new restraints, withdrawal from the EU will enhance the devolved competence.”

At para 150 it is noted that: “The Lord Advocate and the Counsel General for Wales were correct to acknowledge that the Scottish Parliament and the Welsh Assembly did not have a legal veto on the United Kingdom’s withdrawal from the European Union.” Paragraph 150 went on to conclude that the consent of the Northern Ireland Assembly was not a legal requirement before the relevant Act of the UK Parliament (being the present bill under discussion), was passed. However in para 151 it was stated: “In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures.”

A matter of logic

It is interesting to observe that whereas the drafter of para 7 of the explanatory notes to the European Union (Notification of Withdrawal) Bill is seemingly at pains to underline the legal requirements referred to by the Supreme Court (and noted above), no reference is made to what the Supreme Court majority judgment continued to say as to Sewel, albeit observing that the policing of the scope and manner of the operation of the convention did not lie within the constitutional remit of the judiciary.

It merits attention however that according to the 2015 (16th) edition of Bradley, Ewing and Knight’s Constitutional and Administrative Law (p 20): “the Westminster Parliament will not legislate for Scotland on devolved matters except with the agreement of the Scottish Parliament”.

The editors having thus indicated the strength of the convention by using the term “will not legislate”, later observe as to Sewel (p 39): “there is a firm convention… that Westminster should not legislate on a devolved matter without the prior consent of the Scottish Parliament” (emphasis added).

The Secretary of State for Scotland has recently remarked as to the proposed Great Repeal Bill that given that it would “both impact on the responsibilities of this Parliament and on the responsibilities of Scottish ministers, it’s fair to anticipate that it would be the subject of a legislative consent process” (BBC News, 26 January 2017).

This being the case as to the Great Repeal Bill, it merely serves to highlight the logic of the argument that there is no reason why the Sewel convention should not apply likewise to the Notification of Withdrawal Bill now before Parliament, taking into account the majority view of the Supreme Court as to the effect that notification under article 50 will have in domestic law, and notwithstanding the absence of competence of the Scottish Parliament in the international sphere.

Conclusion

The Notification of Withdrawal Bill may be regarded at one level as a clever bill. It succeeds in passing over any reference to article 50(1) TEU, which envisages a member state having made a decision to leave the Union in accordance with its constitutional provisions before notifying the Council of the Union. By the same token, in framing the notice as if it were merely of relevance at the EU level and thus outwith the devolved authority of the Scottish Parliament, it enables the assertion to be made that no question of the Sewel convention arises. However the Supreme Court majority judgment was clear: “the giving of the notice will change domestic law” (para 94).