Questioning the validity of Brexit Article 50 notification

Following the UK government’s decision to take Britain out of the European Union, I wrote a letter to the European Commission suggesting that the constitutional validity of the decision could not be taken for granted and that it might be successfully repudiated by a future UK administration. I suggested that, if they pre-empted that possibility (by seeking formal confirmation from the courts that the decision was valid despite the points I was raising), it would trigger a long-overdue debate in Britain about the flaws in our political system.

At that time, it seemed that Parliament and the Executive were closely aligned and I felt it wouldn’t be enough to focus on the validity of the Executive’s actions alone. My arguments therefore emphasised doubts that might be raised over whether Parliament’s endorsement of the process was truly compatible with the UK constitution. Given the contentious nature of those arguments and the fact that the process was in the early stages, I wasn’t surprised by their response (“The decision by a Member State to organise a referendum, and the modalities and arrangements for that purpose, is a matter falling within the competence of that Member State too” and “The assessment of the constitutional requirements is a matter for the Member State concerned”).

I sent a similar letter to the Scottish Government in September 2017, suggesting they might launch a legal challenge. However, they too declined saying, essentially, that they had accepted that Brexit was going ahead and wanted to focus on making the best of it. Not surprising, perhaps, since a core part of my argument was that greater local autonomy would hugely diminish the appetite for Brexit and they might well have thought that it would also undermine the desire in Scotland for independence from the UK.

Subsequently, in early 2019, a copy of a letter to the UK Cabinet Office (making the same case more clearly and simply) was sent to the European Commission’s representative in London. The covering email suggested that, since 60+ million EU citizens stand to have their citizenship revoked, the EU itself has a responsibility to ensure that the UK’s decision is indeed consistent with our constitutional requirements, as Article 50 requires. They didn’t respond to that suggestion.