Mrs May and ‘the rule of reason’: some notes
[This is a holding note: further sections need to be added on ‘rule of reason’ and the consequences if Mrs May’s reason is not exercised, or is exercised unreasonably.]
It is too late to do much about MPs and what seems to be their minimal understanding of the meaning and consequences of a referendum; and thus to stop the passage of the Article 50 bill. This is the European Union (Notification of Withdrawal) Bill 2017 (the 2017 Bill) whose short title is: to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.
Once the bill is law – has been given Royal Assent – then the landscape changes for political to administrative. We are back to executive or government powers; and then anyone planning to trigger Art 50 (ie the Prime Minister, Mrs May), according to the United Kingdom ‘constitutional arrangements’, is an administrator. (In what follows ‘government’ and ‘executive’ will be used more or less interchangeably; and administrative law will be taken to apply to each.)
It is one of the cardinal rules of administrative law that anyone responsible for exercising a power must do so with reason. Parliament is sovereign; but the government – including Mrs May – is subject to the law (and as she has found already). Triggering Art 50 is one of the more significant exercises of any executive powers since the Second World War (going into Europe was sanctioned by Parliament). She has a decision to make. It is her decision, albeit with advice from a proportion of the June 2016 electorate in a referendum. She must make that decision within the terms of the ‘rule of reason’ (see Administrative Law (2014) Wade & Forsyth (11th Ed) at p 293: a leading text-book on this subject often quoted in the Supreme Court).
If Mrs May triggers Art 50, is she doing so with reason? If so what are her reasons? If she is not acting with reason, she can be stopped. If she triggers Art 50, but without express reason, can the clock be put back? Can her action be stopped, if taken without reason – and if this is acceptable to the wider EU community?
A meaning for the referendum
No-one in Parliament – including Mrs May – seems to know what the outcome of the referendum actually means. To act upon it, or – as she will do – to claim you are acting upon it, without knowing what it means, by definition is to act without reason. A doctor does not plunge a knife into a patient’s breast and think it will cure his or her heart: she needs extensive training to operate on a heart. So too with signing off Art 50. A high degree of understanding of the UK constitutional arrangements is needed; and this understanding is called for in an area – the consequences of referendums – which is, as yet, untrodden.
This note explains this proposition further, does so in the context of administrative law, and suggests what could be done about it.
European Union Referendum Act 2015 s 1 provided: ‘(1) A referendum is to be held on whether the United Kingdom should remain a member of the European Union.’ The section went on to deal with dates and to set out the questions to be asked in English and in Welsh. In English this was:
(4)The question that is to appear on the ballot papers is—
“Should the United Kingdom remain a member of the European Union or leave the European Union?”
And that was that: nothing was said about whether this was to bind the government; what was the meaning of a referendum in UK law; how long the effect of the answers was to last (eg as the members of the electorate on the roll changed); and so on.
Members of Parliament voted on the bill which lead to the 2015 Act, with the following House of Commons Briefing Paper Number 07212 of 3 June 2015 in mind. (If they did not read it does that make any difference to their approach now?) The briefing paper said of European Union Referendum Bill 2015-16:
This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution.
That bill and the 2015 Act lead to the referendum on 23 June 2016. And in the light of this, and the 2017 Bill (if enacted) leads to the power in the Prime Minister to trigger Art 50.
Referendum and the courts
In R (Miller & Anor) v The Secretary of State for Exiting the European Union  EWHC 2768 (Admin) (the first of the two EU withdrawal cases) the Divisional Court said this of the 2015 Act and the referendum:
 Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.
 We emphasise that the Secretary’ of State’s position on this part of the argument and the observations in the preceding paragraphs relate to a pure legal point about the effect in law of the referendum. This court does not question the importance of the referendum as a political event, the significance of which will have to be assessed and taken into account elsewhere.
By ‘elsewhere’ it must be assumed they meant by Parliament or the Government (the executive). There is no evidence that the meaning of the referendum has been ‘taken into account’ in the 2016 bill. The Government have given us no indication as to what Mrs May thinks is its meaning. Plenty of MPs think they are bound in some way by the ‘will of the people’. If the people, like the briefing paper, thought they were tendering advice then this is developing well beyond a serious constitutional misunderstanding with substantial consequences.
Supreme Court and meaning of referendum:…
Administrative law and the rule of reason
Short essay on ‘rule of reason’:
- Start from Padfield v Minister of Agriculture, Fisheries and Food  AC 997,  2 WLR 924
- Unfettered discretion: contradiction in terms
- Special care for ministerial decisions
Conclusion: reasonable to trigger Art 50?
‘Will of the people in referendum’
Burke’s theory: needs revisiting in 2017: mandate or representative
No white paper
No account taken of situation in 2017: May’s blinkered approach is the antithesis of reason
Is an electorate which votes in a simple binary elect capable of ‘reason’ in the administrative law sense of the term?
© David Burrows, Paris January 2017