THREAD: @afneil needs reminding that although his arguments regarding the EU referendum result and leaflets are well intentioned, they are *legally* incorrect.
@A50Challenge have made this perfectly clear.
@A50Challenge have made this perfectly clear.
@afneil @A50Challenge 1. Andrew Neil has suggested that the leaflet the government sent to every household said: “we will implement your decision”. This in itself is correct. But leaflets do not constitute law. He has clearly confused political and parliamentary sovereignty.
@afneil @A50Challenge 2. The Government maintains that the 2016 EU Referendum was a decision to leave the EU – a decision “by the people”. This is untrue. The Referendum was advisory only- the Supreme Court has ruled that neither the govt nor the people are legally entitled to make such a decision.
@afneil @A50Challenge 3. Commentators have tried to spin this by suggesting that the sovereignty of the people should trump Parliament in these circumstances. This is not how our constitution works.
@afneil @A50Challenge 4. And, more importantly. This is why you shouldn’t introduce direct democracy into complex constitutional questions such as EU membership.
@afneil @A50Challenge 5. The Referendum was meant to gauge the country’s interested in leaving or remaining in the EU. As such the EU Referendum Act did not include any usual thresholds (time frames etc) that would characterise it as a binding referendum.
@afneil @A50Challenge 6. To address @afneil’s point about the Government saying it was binding. This was quite simply a way of placating the noisy far-right anti-EU voices in the Conservative party.
@afneil @A50Challenge 7. (1) The referendum was not itself the decision for the purposes of Article 50(1). The European Union Referendum Act 2015 did not say anything about what should happen if the majority of votes were cast in favour of the UK’s leaving the EU.
@afneil @A50Challenge 8. As such, as a matter of domestic law, it was an advisory referendum: see Shindler and Miller. The availability of an expressly ‘binding’ model was well known to Parliament before enactment of the European Union Referendum Act 2015 (see, e.g., section 1(2) of the NI Act 1998)
@afneil @A50Challenge 9. But Parliament chose to legislate for a referendum the outcome of which would not legally require the Government to take, or to refrain from taking, a particular course of action.
@afneil @A50Challenge 10. Nor was there anything in the 2015 Act itself to suggest that the holding of the referendum amounted to the taking of a decision that Parliament would, if it wished to do so, be legally incapable of overriding or reversing.
@afneil @A50Challenge 11. The then PM David Cameron claimed the result of the Referendum would be “respected.” He repeated that position in January 2016 when he told Parliament that it was for the British people to decide in the Referendum.
@afneil @A50Challenge 12. This statement was echoed in the Government pamphlet that was circulated to the electorate ahead of the Referendum.
@afneil @A50Challenge 13. So is the referendum binding? No, it’s not. In his role as Prime Minister, Cameron was not empowered to amend the scope of the Referendum as legislated by Parliament. He made claims that the government was not in a position to honour.
@afneil @A50Challenge 14. Only Parliament may do so, and then only by an Act of Parliament.
@afneil @A50Challenge 15. This is where Article 50 of the Treaty on European Union (TEU) comes in. It requires a withdrawal decision to be made before notice can be served. The Government has misled Parliament, the public and the European Council.
@afneil @A50Challenge 16. The first paragraph of Article 50(1) permits EU Member State to decide to withdraw from the EU “in accordance with its own constitutional requirements.”
@afneil @A50Challenge 17. To date, no decision has been made by Parliament and therefore there is no constitutionally valid decision to leave. The purported Article 50 notification is therefore illegal and invalid.
@afneil @A50Challenge 18. Had the European Union Referendum Act 2015 made the vote binding and the result of the vote was to leave, the Government would have been obliged to give Article 50 notification.
@afneil @A50Challenge 19. But that is not the Act that was passed by Parliament. The Act only made provision for an advisory (or consultative) referendum – an opinion poll – to gauge the country’s interest in leaving or remaining in the EU. Parliament did not delegate the decision to the people.
@afneil @A50Challenge 20. Nevertheless, following the passage of the EU Referendum Act, the then Prime Minister David Cameron made claims that the matter was for the British people to decide, and this message gained momentum and was echoed by other politicians and in the Government pamphlet !
@afneil @A50Challenge 21. But the claims were not backed by legislation and repeating them did not make them law, as the govt later found when they lost the case brought by Gina Miller in which the Supreme Court ruled that the Referendum had not delivered a constitutionally valid withdrawal decision.
@afneil @A50Challenge 22. The case was decided on 24 January 2017, and the govt lost. The Supreme Court upheld the judgment of the High Court, finding that an Act of Parliament was required to invoke Article 50.
@afneil @A50Challenge 23. It further meant, as the Court stressed that the Referendum result could not constitutionally stand as the withdrawal decision.
@afneil @A50Challenge 24. While the ruling in the Miller case had made it clear that the Referendum result could not stand as the withdrawal decision, the Government responded to the ruling with smoke and mirrors.
@afneil @A50Challenge 25. Within days of the Supreme Court ruling, David Davis introduced The European Union (Notification of Withdrawal) Bill 2017 (EU NoW Bill) to the House of Commons.
@afneil @A50Challenge 26. However, he said it was: "not a Bill 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.”
@afneil @A50Challenge 27. Note in Cherry & Others v. Advocate General (Scotland): “On 24 January 2017, this Court decided by a majority that primary legislation was required in order to authorise a notification of withdrawal under Article 50(2) of the (“TEU”)
@afneil @A50Challenge 28... see R (Miller) v Secretary of State for Exiting the EU [2018] AC 61 (“Miller”).”
Also find Cherry written case here- supremecourt.uk/docs/written-c…
Also find Cherry written case here- supremecourt.uk/docs/written-c…
@afneil @A50Challenge 29. But the Bill focused exclusively on the mechanics of notification and ignored the single condition, still unmet, required to “trigger” Article 50: a constitutionally valid withdrawal decision.
@afneil @A50Challenge 30. Notably, in relying on a non-existent “decision already made,” the Government successfully sidestepped any Parliamentary debate of the Referendum result.
@afneil @A50Challenge 31. The ruling in Miller made it clear that the Referendum result couldn’t stand as that decision, so an Act of Parliament is still outstanding to explicitly formalise the withdrawal decision in law.
@afneil @A50Challenge 32. In the ruling of the High Court (Division) Webster v. Sec. of State for ExEU, even putting the Referendum to one side, this is the language of decision not of notification alone, in vacuo, so to speak.
@afneil @A50Challenge 33. The Prime Minister's letter itself contains a decision; backed by the authority of the 2017 Act, that decision complies with the requirements of Miller. No additional UK constitutional requirements however remained to be satisfied.
@afneil @A50Challenge 34. However, while govt say it did, and on the strength of it they “triggered” A50 on 29 March 2017. It is contested that the EU NoW Act did not give the govt the legal mandate to notify under Article 50(2) because the constitutional requirement of Article 50(1) hadn't been met
@afneil @A50Challenge 35. Davis’s words of introduction confirm beyond doubt that the EU NoW Act was not intended to make the withdrawal decision; a claim that is 100% consistent with the wording of the Act itself. Anyone can confirm this for themselves by looking at the legislation notes.
@afneil @A50Challenge 36. Of importance here is the case of legality & statutory interpretation explained by Lord Hoffmann in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at page 131, in the dictum to which Lord Steyn referred in Anufrijeva [2003] UKHL 36 [2004] 1 AC 604:
@afneil @A50Challenge 37. “Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process”
@afneil @A50Challenge 38: “In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”
@afneil @A50Challenge 39: “In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”
@afneil @A50Challenge 41. ‘Surely, the Gov’t knew what they were doing?’, some ask. Yes, they did. It’s clear from statements they made on record, and they will have had advice from Government lawyers.
@afneil @A50Challenge 42. However, that did not stop them from claiming, upon introduction of the Bill, that the withdrawal decision was a “decision already made” (in defiance of the Supreme Court’s ruling)
@afneil @A50Challenge 43. ...and that claim was reinforced by the exclusion from the Bill of very simple wording that would have unambiguously formalised the withdrawal decision in law.
@afneil @A50Challenge 44. If further proof of the unbinding nature of the referendum is required. We need not look further than the legal action of @JMPSimor
@afneil @A50Challenge 45. It was ruled that the 2016 EU referendum should be voided because of criminal activity by the Brexit campaign. – Only it can’t be because of this loophole: it wasn’t a binding referendum.
@afneil @A50Challenge 46. Speaking on LBC, it was repeated in disbelief: “if the referendum had been legally binding, then the findings of the Electoral Commission would have rendered it invalid. Because if it’s been corruptly delivered, how on earth can we be held to it?"
@afneil @A50Challenge 47. Indeed, the Court in @Suewilson91 v. PM ruled the Prime Minister is not obliged to take account of the mounting evidence that casts doubt on the legitimacy of the referendum.
@afneil @A50Challenge 48. So in essence, with no real constitutionally valid withdrawal decision in law, the legitimacy of the referendum is in serious question.
As a side note, even though the Webster judgement said the 2017 Act was sufficient for the purposes of triggering the process, arguably the Act did not give rise to notifying under Article 50(2) because the requirements under (1) had not been met @A50Challenge
