Theresa May MP 10 Downing Street London SW1A 2AA [By post]
Dear Prime Minister,
UKExit (aka Brexit) 1. The purported Article 50 Notification of 29th March 2017 is unlawful a. The effect of Queens Consent on the purported Royal Prerogative b. Does the Royal Prerogative exist in 2017? A deeper analysis 2. Article 4(3) TEU requires the UK to inform the European Union of this issue 3. The urgency to resolve this matter 4. Those who need to be informed 5. Prospective legal action 6. Potential misconduct in public office I write to ask you urgently and carefully to take advice on the legal issues relating to UKExit (aka Brexit) to which I draw your attention in this letter. Stated bluntly, I believe that the purported Article 50 Notification contained in the letter of 29th March 2017 from yourself to President Tusk is unlawful. The consequence, if such an analysis is correct, is that the United Kingdoms attempt to use Article 50 of the Treaty on European Union must fail. To state the obvious, such an eventuality is of enormous political and practical significance. To mitigate the potentially huge damage to UK businesses, academic institutions and other entities I believe that the United Kingdoms unlawful attempt at exiting the European Union must be terminated forthwith. The purported Article 50 Notification of 29th March 2017 is unlawful Two lines of constitutional analysis lead me to the conclusion that the purported Article 50 Notification of 29th March 2017 is unlawful. Neither line of argument was considered by either the Divisional Court in October 2016 nor the UK Supreme Court in December 2016. The following two sections serve broadly to illustrate the nature and scope of the legal issues which lead me to the conclusion that the purported Article 50 Notification of 29th March 2017 is unlawful. I invite you to ensure that the Government, as a matter or urgency, seeks counsels advice on this matter. I also invite you promptly to ensure that the European Union institutions, UK business organisations and the UK public are informed of these matters. The effect of Queens Consent on the purported Royal Prerogative The first issue is the effect of Queens Consent on any purported use of the Royal Prerogative. In this section, in order to approximate this analysis to conventional constitutional assumptions, I have made the simplifying assumption that the Royal Prerogative was in existence in both 1972 and 2016. (In the section which follows I challenge the assumption that the Royal Prerogative continues to exist.) Queens Consent is a necessary procedure in the consideration by Parliament of bills which relate to the Queens prerogative, interest or both. So far as I have hitherto been able to establish Queens Consent was not considered by the UK Supreme Court in December 2016 nor (with less certainty) has it been considered by any other Court in the UK in any previous case. During the Parliamentary procedure relating to what became the European Communities Act 1972 the Queen, by means of Queens Consent, placed her prerogative at the disposal of Parliament for the purposes of the Bill. I refer you to House of Commons Hansard for 15th February 1972, specifically the following statement by Mr. Geoffrey Rippon: I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place Her interest and prerogative, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill. The relevant text is online at http://hansard.millbanksystems.com/commons/1972/feb/15/european- communities-bill#S5CV0831P0_19720215_HOC_230 To the best of my knowledge the letters which passed between the Government of the time and Buckingham Palace are not in the public domain. Those letters are, so I understand, part of the procedure by which Queens Consent is obtained before a Bill is placed before Parliament. The wording of Mr. Rippons statement suggests to me that the Royal Prerogative as it relates to what is now the European Union, no longer exists since it was, if Mr. Rippon is to be believed, made subject to Parliament with respect to all matters to which the European Communites Bill applied. The subsequent granting of Royal Assent established the ongoing nature of the transfer of the Royal Prerogative to Parliament with respect to the European Communities Act 1972. If I am correct that Parliament has control of all matters relating to the European Union which may have been formerly subject to the Royal Prerogative it follows, at least in my analysis, that the Government cannot purport to use the Royal Prerogative with respect to any Article 50 decision relating to the exit of the United Kingdom from the European Union. Let me now turn more directly to paragraphs 1 and 2 of Article 50 of the Treaty on European Union which, for convenience, I reproduce here. Article 50 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. It is, I suggest, self-evident that a lawful Paragraph 1 decision must precede a lawful Paragraph 2 notification. The question therefore becomes whether or not a lawful decision has been made by the United Kingdom to withdraw from the European Union. At the Supreme Court the Government argued that it had made a Paragraph 1 decision by means of the Royal Prerogative. If I am correct that the Queen, by means of Queens Consent, in 1972 placed the Royal Prerogative in the hands of Parliament for the purposes of the European Communities Bill then, so it seems to me, it is not possible for the Government lawfully to purport to make use of the Royal Prerogative in 2016 for a purpose within the scope of the European Communities Act 1972. It occurs to me that the Government might, as an alternative, seek to argue that Parliament had made a Paragraph 1 decision in its consideration of the European Union (Notification of Withdrawal) Bill. On 31st January 2017 the Secretary of State for Exiting the European Union, during the Second Reading of European Union (Notification of Withdrawal) Bill, stated the following: The Bill responds directly to the Supreme Court judgment of 24 January, and seeks to honour the commitment the Government gave to respect the outcome of the referendum held on 23 June 2016. It is 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 madea point of no return already passed. Mr. Davis informed the House of Commons on 31st January 2017 that the decision to leave the European Union had already been taken. So, I suggest, it is not possible for the Government fairly to argue that Parliament, in its consideration of the European Union (Notification of Withdrawal) Bill took the decision to leave the European Union. Paragraph 1 of Article 50 of the Treaty on European Union indicates that a decision must be carried out according to a Member States constitutional requirements. If, as I argue above, the Government cannot lawfully use the Royal Prerogative to make an Article 50 decision and, so David Davis informed the House of Commons, the decision had already been made before the Second Reading (on 31st January 2017) of the European Union (Notification of Withdrawal) Bill, the question arises as to whether any lawful decision of the kind referred to in Paragraph 1 of Article 50 of the Treaty on European Union has been made. In the seeming absence of any lawful decision in the context of Paragraph 1 of Article 50 of the Treaty on European Union, it seems to me that the purported notification of 29th March 2017 is unlawful and visibly open to legal challenge. Does the Royal Prerogative exist in 2017? A deeper analysis The preceding section assumes that the Royal Prerogative existed in both 1972 and 2016. In doing so I reflect widely held assumptions about the UK Constitution (should such exist). In the hearings before the Divisional Court in October 2016 and the UK Supreme Court 2017 it was a shared assumption of the Government and Gina Miller and other litigants that the Royal Prerogative existed. In my view there is good reason to question the widely held assumptions about the existence of the Royal Prerogative and how and by whom, if it exists, it may lawfully be exercised. For convenience, I have subsumed some relevant questions under a heading Does the Royal Prerogative exist in 2017?. Similar questions may be asked regarding its existence (or otherwise) of the Royal Prerogative in 1972 and 2016. The direct relevance as to the lawfulness or otherwise of the purported Article 50 Notification arises from the claim made to the UK Supreme Court that the Decision in terms of Paragraph 1 of Article 50 of the Treaty on European Union was made (implicitly by the Prime Minister) by means of the Royal Prerogative. To the best of my knowledge constitutional questions of the kind expressed in this section have never been considered in detail in a UK Court. Those questions are, I suggest, fundamental to any credible consideration of whether or not the Royal Prerogative could be used for the purposes of an Article 50 decision. I believe that such questions may require to be asked in the prospective legal action to which I refer elsewhere in this letter. 1. Is there in 2017 one Royal Prerogative or two? In 1602 there existed, according to conventional thinking, two Royal Prerogatives that for Scotland and that for England. Did both survive the Union of the Crowns in 1603? Or did only one survive? 2. If one assumes that there is a single Royal Prerogative following the Union of the Crowns in 1603, is that single Royal Prerogative the Scottish Royal Prerogative, the English Royal Prerogative, or what might be termed the AngloScottish Hybrid Royal Prerogative? 3. Given that a Scottish King assumed the throne of England in 1603 did the English Royal Prerogative lapse or otherwise fall into abeyance? Did the English Parliament have lawful authority with respect to the means by which the Scottish Royal Prerogative was passed to future generations? 4. One may also ask serious questions about the assumed legitimacy of the so-called Glorious Revolution and the impact of that on questions relating to any assumed Royal Prerogative. For example, can an English Parliament which effectively deposed the then lawful King (James VII of Scotland and II of England) be considered as anything other than treasonous? Did such an English Parliament which essentially assembled itself have the lawful right to declare a foreign invader, William of Orange, to be king? 5. Given such legal questions about the so-called Glorious Revolution does the Act of Settlement 1701 lawfully define to whom the Crown of England is to be given? Not least among the causes for concern is that the route of succession specified is visibly sectarian and discriminatory. 6. On what basis does the Executive purport to exercise the Royal Prerogative? Is such supposed exercise by the Executive of the Royal Prerogative constitutional? If it is claimed that it is constitutional, on what basis does such a claim rest? By what means did a supposed authority unique to the Sovereign pass to the Executive? 7. On what date and by whom was any supposed Royal Prerogative used by the Executive to decide that the United Kingdom should exit the European Union (in the meaning of Paragraph 1 of the Treaty on European Union)? For example, did the Queen authorise the Prime Minister to make a decision in the meaning of Paragraph 1 of Article 50 of the Treaty on European Union? It seems to me that questions such as the foregoing lead to the conclusion that no Decision has been made of the kind alluded to in Paragraph 1 of Article 50 of the Treaty on European Union. Without such a Decision it seems to me that any purported Notification in the meaning of paragraph 2 of Article 50 of the Treaty on European Union is, at a minimum, highly questionable and is highly likely to be unlawful. Article 4(3) TEU requires the UK to inform the European Union of this issue You are, I feel sure, aware of Paragraph 3 of Article 4 of the Treaty on European Union and the duty of sincere cooperation which it imposes on Member States. For convenience, I reproduce the text of Paragraph 3 of Article 4 TEU here: 3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives. There can, I suggest, be no doubt that the upcoming negotiations between the United Kingdom and the European Union regarding UKExit (Brexit) flow from the Treaties. Where you have been made aware of the possibility that the Article 50 Notification may be unlawful it seems to me that pursuant to the principle of sincere cooperation the United Kingdom has a legal duty promptly to inform the European Union institutions of the existence of the question. I ask that, urgently, you take action to ensure that the institutions of the European Union are so informed. The urgency to resolve this matter If I am correct that the purported Article 50 Notification of 29 th March 2017 is unlawful it seems to me that several very serious issues flow from that understanding. Large sums of public money are being spent on preparations for UKExit (Brexit). If I am correct that the purported Article 50 notification is unlawful those public funds are being spent to no good effect. Similarly, a considerable amount of effort, and presumably expenditure, is being expended by the European Union to respond to UKExit (Brexit). Those funds are similarly being wasted, if one assumes that the purported Article 50 Notification is unlawful. Further, you cannot be unaware that UK businesses are expending large amounts of effort in making contingency plans for the anticipated UKExit (Brexit). It seems to me that you have a duty to ensure that UK business organisations, for example the Confederation of British Industry, are informed of these concerns so that they may take legal advice on the issue. In addition, the purported Article 50 Notification has raised huge concerns among many residents of the United Kingdom. It seems to me that you, as Prime Minister, have a duty to ensure that the public is informed of this issue. Those who need to be informed I ask that you inform forthwith the Secretary of State for Exiting the European Union of the existence of the questions regarding the lawfulness of the purported Article 50 Notification. Further I ask that you forthwith inform the relevant individuals and institutions of the European Union that this question has been raised with you. In addition, I ask that this matter is placed before the Joint Ministerial Committee so that the devolved administrations are fully informed regarding this hugely important matter. Of course, you will wish to seek counsels opinion on these matters to arrive at a considered view as to whether or not the purported Article 50 Notification is fatally and irredeemably flawed. Prospective legal action I am in the early stages of assembling a group of like-minded individuals to begin legal action with respect to the perceived unlawful nature of the purported Article 50 Notification of 29th March 2017. Given that it will take some time to carry out practical preparatory steps with a view to such legal action it seems to me to be less damaging to UK businesses and to the long-term interests of the United Kingdom that the UK Government should take definitive steps now to resolve the issue. I invite you to consider how you should proceed, given your duties as Prime Minister of the United Kingdom. Potential misconduct in public office You are likely aware that under English Law of the existence of the common law offence of Misconduct in Public Office. The Crown Prosecution Guidance on Misconduct in Public Office lays out four criteria which relate to charging decisions on such an offence. Those criteria are available online here: http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/ For your convenience I summarise them here: 1. A public officer 2. Acting as such 3. Wilful neglect or misconduct 4. Without reasonable excuse or justification If I am correct that EU Law (specifically Article 4(3) of the Treaty on European Union) requires the United Kingdom to inform the European Union of the question regarding the suspected unlawful nature of the purported Article 50 Notification of 29th March 2017, failure on your part to ensure that the European Union is so informed might reasonably be construed as satisfying the criteria expressed in the Crown Prosecution Service Guidelines. Distribution This letter is an open letter. I reserve the right to distribute copies of this letter to persons and institutions who may have an interest in the matters to which I draw your attention. Actions requested of you I ask that you promptly acknowledge receipt of this letter. I further ask that, as a matter of urgency, you seek counsels opinion as to the validity and potential importance of the lines of legal argument to which I draw your attention in this letter. I also ask that you urgently take all relevant steps to ensure that the United Kingdom (as a Member State) complies with its duty expressed in Paragraph 3 of Article 4 of the Treaty on European Union. I take that duty to require the United Kingdom promptly to inform all relevant institutions of the European Union of the existence of the questions of the lawfulness (or otherwise) of the purported Article 50 Notification of 29 th March 2017. I ask that you take all relevant steps to ensure that the devolved administrations are made fully aware of this issue and your response to it. Yours sincerely