A barrister called David Wolchover has written an article in Counsel Magazine (a sort of in-house publication for barristers) in which he contends that the Prime Minister did not have the power to invoke Article 50. His arguments are extraordinarily weak and I would not have mentioned them here were it not for the fact that a gullible journalist on the Telegraph (Matthew Scott) has read them and written a piece telling the world that a brilliant lawyer has concluded we have not invoked Article 50. There is no point in my giving you the link to Mr Scott’s article because it is one you have to pay to read.
Mr Wolchover’s argument is a simple one (although he does repeat it rather a lot in his lengthy article). He says that the Supreme Court decided, in the Gina Miller case, that the royal prerogative could not be used to effect our withdrawal from the EU. An Act of Parliament was required. But, so he goes on, Parliament proceeded to pass an Act which did not permit the government to effect our withdrawal from the EU. It merely passed an Act allowing the government to notify the EU of our intention to withdraw, should Parliament ever express such an intention in the future. The words of the Act, he contends, were not sufficient to approve our withdrawal.
This is what the Act says:
” 1 Power to notify withdrawal from the EU
“(1) 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.
“(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.”
To you or me that seems pretty straight forward, but not to Mr Wolchover. His argument must be, I suppose that the words “the United Kingdom’s intention to withdraw from the EU” must be qualified by the addition of further words such as “should Parliament ever pass an Act in the future expressing that intention.”
Mr Wolchover supports his argument by pointing to the fact that, on 14th March, Sir William (Bill) Cash asked the Prime Minister whether the government had taken legal advice on whether the Bill, as it then was, might be undone by future litigation. Wolchover implies that Cash was concerned about his clever argument. In fact, it is almost certain that Cash was worried about something else entirely. This is how I expressed my own concern about the Bill (in a piece written on 7th March):
“The debates [in the House of Lords] have mostly been ill informed and boring. But one crossbencher, Lord Hope of Craighead, kept raising an important point which I don’t think the government has ever answered. Lord Hope is a retired law lord and former deputy president of the Supreme Court. His opinion on matters legal deserves great respect. He kept telling their Lordships (though most of them were too stupid to understand his point) that there is a great risk that the courts may declare that the government has no power to ratify any withdrawal treaty because an Act of Parliament may be required. He could be wrong. It certainly doesn’t follow, because the majority of the Supreme Court said Article 50 could only be triggered by an Act of Parliament, that an Act will also be needed to ratify the final agreement. But the point is plainly arguable. The chances of Gina Miller deciding not to seek a judicial review of the government’s ratification of the withdrawal treaty are, I would have thought, almost non-existent.
“If the present Bill had a clause (not Pannick’s anti-Brexit clause) which provided that the government could ratify a withdrawal treaty after the votes in both Houses which have already been promised, Ms Miller would be deprived of her argument and we would all be saved months of uncertainty as the courts decided whether they could overrule the government and Parliament.”
Lord Hope’s point was not, of course, Mr Wolchover’s, that the Article 50 notification could not be made without a further Act expressing Parliament’s intention that we should withdraw from the EU. He was merely saying that it might be arguable that, once a withdrawal agreement had been reached, a further Act would be required to ratify it.
Could a British court ever go along with Mr Wolchover’s strained argument? Some of my readers, I fear, will think that could happen. But I can assure them they are wrong. Common sense plays a much larger part in the deliberations of our judges than most people realise. The Act plainly permits the Prime Minister to notify the EU of the established fact of the United Kingdom’s intention to leave the EU. Were a court to be persuaded that the provision was ambiguous and that Parliament might have been doing something totally pointless, it could read the Hansard debates. It would then learn that no MP or Peer considered that all they were doing was permitting some future notification under Article 50 after yet another Act was passed expressing the UK’s intention to leave the EU. I am happy to predict with absolute confidence that, should Mr Wolchover’s contentions ever be advanced in court, they would be summarily dismissed as the nonsense they plainly are. That said, I should also say that I think it wildly improbable that Lord Pannick QC (Gina Miller’s very clever counsel) would ever advise her to adopt the Wolchover case.
So, don’t fret. There may be interesting litigation ahead, but the Wolchover submissions are unlikely to be heard and will, undoubtedly, if they are heard, be dismissed very quickly.