Rose Slowe: Reflections on the ‘Three Knights Opinion’ and Article 50 TEU

9 March 2017 by Guest Contributor

On 17 February 2017, Bindmans LLP published an Opinion solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration.

UK constitutional requirements: why an Act of Parliament at the end of the Article 50 process is required

Article 50(1) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The sequential application of this provision, or lack thereof, is addressed below, while the domestic requirements it refers to are considered here.

The Supreme Court’s ruling in Miller confirms that, as a matter of UK constitutional law, only Parliament has can authorise, and give effect to, changes in domestic law and existing legal rights. The majority held that the European Communities Act 1972 has rendered EU law a source of domestic law, and now that it had acquired that status getting rid of it is not a matter of foreign affairs and therefore beyond the scope of the Royal prerogative.

The EU (Notification of Withdrawal) (‘Brexit’) Bill, introduced in response to Miller and currently being debated by Parliament, seemingly fails to satisfy this constitutional requirement as it merely permits the Prime Minister to give notice under Article 50(2). As set out in the Three Knights Opinion, the only way the Bill could serve as the legislative basis for the UK’s withdrawal from the EU is if it was ‘read as an exceptionally wide enabling law, handing to the Executive power to decide which legal rights may be given away or lost through negotiations with the EU, or by leaving the EU without an agreement.’ Professor Elliot asserts that, while Courts must interpret legislation primarily by reference to the words on the page, it is possible that a Court called upon to interpret the Brexit Bill, once enacted, would take some account of the context in which it was passed, and the shared understanding that it is intended to serve as a legitimate basis for Brexit. However, it seems to fly in the face of the Supreme Court’s ruling in Miller, in which paramount constitutional importance was placed upon Parliamentary sovereignty and statutory authorisation, for the Courts to subsequently infer that the Brexit Bill implicitly authorises the UK’s withdrawal on whatever terms are reached or, failing that, absolutely and without any future relationship. To do so would diminish the role of Parliament to nothing more than writing a blank check for Brexit.

Despite contentions to the contrary, for example those of Paul Daly, it is submitted that it is impossible for an Act of Parliament to expressly authorise Brexit at this time because the terms, and concomitant change to domestic law and rights, is a matter for negotiation with the European Council. It follows that further statutory authorisation will be required to give legal effect to the UK’s decision to leave the EU upon conclusion of Article 50 negotiations. As the Three Knights Opinion reasons, ‘Parliamentary sovereignty and the principle of legality require Parliament expressly to authorise withdrawal from the EU on the terms agreed with the EU, or to authorise withdrawal if no acceptable terms can be agreed.’ Support for this protestation can be inferred from the dissenting judgement of Lord Carnwath in Miller [259]: ‘whatever the shape of the ultimate agreement, or even in default of agreement, there is no suggestion … that the process can be completed without primary legislation in some form’ (emphasis added).

As noted in the Opinion, current concessions by the Government regarding Parliament’s role at the end of the Article 50 process fall short of meeting the constitutional requirement of statutory authorisation. Promising that Parliament will have ‘a vote’ on the terms of withdrawal negotiated with the EU does not meet the statutory requirement set out in Miller. Parliament passing the proposed so-called ‘Great Repeal Bill’ is also insufficient in satisfying this constitutional requirement. First, it will prove incapable of transposing all rights currently enjoyed under EU law, some of which are incapable of replication at domestic level. Second, pursuant to Miller, Parliament’s role is not merely to give legal effect to whatever ministers negotiate on the international plane. While the Government’s White Paper asserts that Parliament will determine the content of the legislation, its scope and substance will largely be pre-determined by the terms of any agreement reached with the EU, or lack thereof.

The Three Knights Opinion aptly notes that requiring an Act of Parliament to give effect to Brexit upon conclusion of negotiations is not unprecedented. There is a well-established constitutional practice of Parliament legislating to give effect to new international agreements, particularly those concerning the EU. Similar constitutional arrangements apply in other Member States. Nevertheless, to provide legal clarity for the UK and EU, and ensure that the constitutional requirement of express Parliamentary approval is respected, a provision ought to be included in the Brexit Bill making it clear that the UK shall leave the EU only when Parliament has legislated to approve the terms of a withdrawal agreement or to authorise withdrawal without any agreement.

Such an amendment was debated by the House of Lords on Tuesday 7 March, with Peers voting in its favour by 366 votes to 268. The amendment translates into a statutory obligation the Prime Minister’s political promise that any draft agreement with the EU would be put to Parliament for approval before being sent to the European Parliament for its consent. Further, it specifies that ‘approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the UK shall leave the EU without an agreement as to the applicable terms.’ While the Government’s stated position is that if no deal is agreed, or if the deal is rejected by Parliament, the UK will automatically leave the EU without any further decision by Parliament, such a decision can, and should, only be made by Parliament. Lord Pannick QC, co-author of the amendment and lead Counsel for the Claimant in the Miller litigation, notes that, pursuant to Parliamentary sovereignty, the Government should be required to obtain the approval of Parliament if it decides to leave the EU with no deal.

Interpreting Article 50: why revocable notification in conditional terms is permissible

If, as argued above, an Act of Parliament at the end of the negotiation process is a UK constitutional requirement, it follows that Article 50 must be read as allowing a decision to leave the EU to be conditional on that requirement being satisfied.

The conditionality and revocability of notification under Article 50 was not raised in Miller as an issue requiring determination. It was common ground between the parties that Article 50(2) notice could not be qualified or withdrawn once given, and the Court chose to proceed on this agreed assumption. The failure to raise or address the issue was indisputably politically motivated as opposed to stemming from an absolute consensus on the interpretation of Article 50. If adjudicated, as the domestic Court of last resort, the Supreme Court would have been obligated to refer the question of revocability to the ECJ for determination, pursuant to the Article 267 TFEU preliminary reference procedure. The political backlash against the EU judiciary meddling in the UK’s withdrawal would have undoubtedly been immense. However, in the absence of such a reference, contrary to Professor Elliot’s contention that Three Knights Opinion may not withstand the ruling in Miller, Miller may not withstand the Opinion if the ECJ is ultimately to rule Article 50 to be revocable (see my earlier blog post on this issue).

The common ground in Miller is far from uncontentious. The assumption of irrevocability appears to stem from a strict textual interpretation of Article 50(3), which specifies that ‘The treaties shall cease to apply to the State in question… two years after the notification referred in paragraph 2’ (emphasis added), with only an option for bilateral extension of the negotiation period provided. However, compelling counter arguments have been put forward in legal scholarship (see for example Professor Closa), many of which find repetition in the Three Knights Opinion which gives a well-reasoned explanation as to why Article 50 ought to be interpreted so as to permit notice to be given in conditional terms and to be unilaterally withdrawn once given.

First, inferences can be drawn from the text of Article 50. The absence of any provision precluding revocation indicates that this is otherwise permitted. Article 50(5) addresses the situation where a Member State has withdrawn from the Union but later changes its mind and asks to re-join, but there is no comparable provision for a Member State that changes its mind prior to withdrawing indicating that no formalities apply and membership status is simply retained. Pursuant to Article 50(1), a decision to withdraw must be in accordance with the Member State’s constitutional requirements, however, for the reasons set out above, these requirements cannot necessarily be satisfied at the time when notice is given. Article 50(1) and (2) should therefore be read concurrently as opposed to sequentially, meaning a Member State’s constitutionally compliant decision to leave the EU does not have to be effective before notice under Article 50(2) is given. While Professor Elliot contends that this conclusion sits uncomfortably with Article 50 purportedly presupposing that a valid and legally complete decision to withdraw exists prior notification, he overlooks the language of Article 50(2), namely the use of ‘intention’ and the present tense ‘which decides’, rather than ‘has decided’.

Second, it would be incompatible with the EU Treaties for Article 50 to have the effect of ejecting a Member State against its will, or contrary to its own constitutional requirements. Article 50 is a mechanism for voluntary withdrawal, not expulsion. It is, in fact, inconsistent with the fundamental principles and aims of the EU for a Member State to be expelled.  Further, Article 50 is premised on respecting a Member State’s constitutional requirements. If, in accordance with its own constitutional requirements, a Member State’s intention to withdraw changes, it would be inconsistent with the Treaties’ integrationist rationale and their emphasis on shared democratic values for the EU to rejected this.

Third, when interpreting Treaty provisions the consequences must be born in mind. As Professor Craig explains, to read Article 50 as not allowing for the possibility of substantive change in circumstances in a withdrawing Member State within the negotiating period would potentially give rise to severe consequences.

Fourth, international law and practice warrants consideration. Almost all supranational organisations require a ‘cooling off’ period between announcement and effective withdrawal, thereby providing a timeframe within which the withdrawing state can change its mind. Article 65 of the Vienna Convention permits a party to give notice of withdrawal from a treaty, which Article 68 provides may be revoked before it takes effect.

The question then arises as to the consequences if constitutional requirements are not satisfied upon conclusion of Article 50 negotiations. The Three Knights Opinion contends that, if Parliament were unwilling to consent to the negotiated agreement, or approve withdrawal without any agreement in place, Article 50(3) would not automatically expel the UK as no Member State can be forced to withdraw otherwise than pursuant to a voluntary decision taken in accordance with its own constitutional requirements.

The Opinion concludes that, if the intention expressed in the Article 50(2) notification is subject to the fulfilment of subsequent constitutional requirements, and if those conditions remain unsatisfied at the end of the Article 50 negotiation period, the notification given would have to be treated as having lapsed because the constitutional requirements necessary to give effect to it have not been met.

Nevertheless, as conceded in the Three Knights Opinion, with no explicit reference to revocability in Article 50, the point could ultimately be determined authoritatively only by the ECJ. ‘Unless and until it is determined by that Court, it is impossible to know for sure whether the giving of notice under Article 50(2) commences a process of withdrawal that the withdrawing Member State can unilaterally stop.’

The so-dubbed ‘Dublin Case’ seeks to refer the issue of revocability to the ECJ for final determination. However, the EU judiciary may, ultimately, refuse to adjudicate as the question posed is seemingly hypothetical.

Rose Slowe is a Research Intern at the Bingham Centre for the Rule of Law.  The full version of this post appears on the University of Bristol Law School blog.