LONDON — It almost sounds like the plot of a thriller: What if the government has not actually triggered Article 50, and insiders all know the Brexit negotiations in Brussels are a sham that will fall apart as soon as they are challenged in court?
And — to take that a step further — what are the real motivations of Prime Minister Theresa May and the rest of the EU if they all know that Article 50 has, in reality, not been legally triggered?
The theory, which has been bouncing around the corners of the internet favoured by pro-Remain lawyers for months, suddenly got new legs after the June 8 general election, which weakened May's government and filled the House of Commons with a larger number of MPs who are pro-Remain, and who could be looking for a way to keep Britain in the EU through our own incompetence or inertia.
The theory relies on a technical reading of the European Union (Notification of Withdrawal) Act 2017, the "Brexit Bill" which was passed into law by Parliament following Gina Miller's successful Supreme Court lawsuit forcing Parliament to actually hold a vote on leaving the EU.
The gist of the theory is:
a) the EU Referendum of 2016 was not legally binding because only Parliament can make laws;
b) the EU Withdrawal Act only empowered the prime minister to notify the EU of Britain's desire to trigger Article 50
c) and that the words in the act don't actually contain a decision to trigger Article 50.
Without that decision Article 50 has not been triggered, and this whole thing is going to fall apart — or at least go back to the beginning — if anyone can force the UK Supreme Court or the European Court of Justice to address the issue head-on.
Let's get into the details.
The fact that the referendum isn't legally binding is well-established. When Parliament voted to hold the Referendum, it made the vote "advisory." That fact was enshrined into law, again, by the Miller case which required the House of Commons to vote on the issue.
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.
What the act doesn't explicitly say is, "The United Kingdom intends to withdraw from the European Union." That seems like a key omission because the words in Article 50 require a decision to be made before notice is given. Article 50 says (emphasis added):
Technically, the UK has failed to "decide" because the EU Withdrawal Act doesn't overtly contain that decision. It simply contains a new power for the Prime Minister, to "notify" the EU after such a decision.
The Miller case goes some way to support the theory. The ruling is focused on whether the Referendum counted as a decision that binds Parliament. The court found that the Referendum was only advisory, and for the Referendum to become law Parliament must actually pass an act: It says:
"... ministers cannot give Notice by the exercise of prerogative powers, only legislation which is embodied in a statute will do."
The key in terms of Article 50 is that the required legislation — an overt decision to leave — isn't actually in the statute that Parliament passed.
According to Jolyon Maugham, a pro-Remain barrister involved in a separate legal case that wants to establish whether the Article 50 trigger is reversible or not, the omission was deliberate:
"It is inconceivable to me that this omission was accidental. The short Act is drafted with some care."
"... But here’s a speculation and one – I think – that has the ring of truth. If you were determined to leave the EU you would not want the decision to do so to be sourced in an Act of Parliament. After all, a thing that is done by MPs can be undone by MPs."
The implication is that with a change of government the EU Withdrawal Act could be reversed, or a legal challenge could render Theresa May's Article 50 notification technically invalid. It also suggests there might be some sort of emergency reset button available if the Article 50 talks go badly: A successful legal challenge would require May to trigger the process again, giving her two more years to get a good deal for the UK.
The theory also has some support among politicians. Eluned Morgan, a Labour peer in the House of Lords and a member of the Welsh Assembly, asked a question in the Welsh Assembly about it earlier this month:
"Whilst the act does authorise the prime minister to notify the EU that we intend to leave it does not, as it's written, indicate that we should leave. Now I understand that coming from an EU enthusiast like me that's going to sound like a ruse to stop us from leaving the EU but it's not. It's a genuine question of whether the act as it is drafted could be challenged in court."
She got an answer from Mark Drakeford, the Welsh cabinet secretary for finance:
"I am aware of the point that she makes about the potential technical flaw in relation to Article 50 legislation, ... a technical problem with the act that was passed by the UK.I know they have taken this view to the (EU) commission and I know it is shared by some very senior previous law lords for example. ... I wonder whether they are mistaking the law for the politics of this matter. Even if there is a technical flaw in the way that the act may have been put together, whether the political majority, the purpose of that act, will not in the end be held to be more significant."
That last bit is the biggest hole in the argument: Even if you assume the act is flawed because it doesn't contain a decision, a court could easily interpret its intent: The UK voted to Leave, and Parliament voted to notify the EU it was pulling the Article 50 trigger, and that's pretty much a decision. (There is a good discussion of that here, by Kenneth Armstrong, a Professor of European Law at Cambridge.)