If an Act is required, why did apparently no-one say so prior to the referendum?

In my penultimate post I recorded several instances when the Government, with support on occasion from the Opposition, undertook to make our EU membership a matter for decision by the British people in a referendum, calling that decision ‘the final say’, or ‘the final decision’. I pointed out that if the Supreme Court were to uphold the Judgement of the High Court, then the final decision would be made by Parliament, and the referendum would become, so to speak, the penultimate decision, and no longer the final one. Thus the Government would be obliged by the Courts to breach its commitment to the British people, which is a very serious matter.

From 28 May 2015, when the European Union Referendum Bill was published, it was known that the Government did not intend the resulting Act to contain any express authorisation for it to issue the Article 50 notification. If the High Court Judgement is right, then in the absence of such authorisation in this Referendum Act, a further Act would be required in the event of a Leave vote to authorise the notification. Since Parliament is sovereign in our constitution, it would be free, from a constitutional point of view, to decline to pass such an Act. It follows that the Referendum result could not properly be called ‘the final decision’.

If the constitutional position was known to be as the High Court has judged that it is, therefore, one would have expected that the Government would have been corrected on the occasions when it said that the referendum would be the final decision. Surely, someone should have stood up in the Commons on 9 June 2015, or in the Lords on 13 October 2015, or again in the Commons on 22 February 2016, and pointed out that the matter would have to be returned to Parliament for the final decision. Or a constitutional expert should have responded to David Cameron’s Chatham House Speech of 10 November 2015, or to Cm 9216 in February 2016, or to the Government’s information booklet of April 2016, and made that same observation. But no-one did, to my knowledge.

Surely, if the constitutional position was known to be as the High Court has judged, someone should have spoken up and said that although Treaty making and termination is normally a matter for the Government under the Crown prerogative, this case was different. Withdrawal from the EU, it might have been said, would lead to the loss of domestic rights, and the Government could not use the prerogative to take action with this result. Alternatively, Parliament had acted intentionally through the 1972 European Communities Act to incorporate EU rights as domestic rights. Withdrawal from the Treaties would render this Act nugatory, and thus cut across the intent of Parliament, which is unlawful. Or put a little differently, the ECA had displaced the relevant prerogative power. But no-one, so far as I have been able to ascertain 1, made these arguments, prior to the referendum.

Evidence for originality of Barber et al’s argument

In a 27 June response to Barber et al’s article of the same day claiming that authorisation by an Act of Parliament was required before the Government could trigger Article 50, Kenneth Armstrong, Professor of European Law at Cambridge University, described their argument as ‘intriguing’. On 30 June, Mark Elliot, Professor of Public Law at Cambridge University described Barber et al’s argument as ‘fascinating’. To my mind, the argument would not be ‘intriguing’ or ‘fascinating’ to these experts in the field if they were already familiar with it.

Barber et al make no reference to previous advocacy of their viewpoint. The September 2016 Report of the House of Lords Select Committee on the Constitution on ‘The invoking of Article 50’ cites (p. 6, fn. 11) no work earlier than Barber et al in defence of their view. 


I conclude that before the referendum it was generally taken for granted that the Government would be free to trigger Article 50 in the event of a Leave vote. I have found no evidence that the argument which prevailed in the High Court had been put forward publically prior to Barber et al’s article of 27 June 2016. This does not mean that the argument is wrong. But if it were right, and the correct constitutional position is that an Act of Parliament is required before the Article 50 notification, then I for one would have expected someone to have said so publicly before the referendum. That no-one did so, so far as I have been able to ascertain, is a matter therefore that seeks an explanation, if the High Court judgement is right.



  1. I have made enquiries on this point, writing to some who might be expected to be in a position to know

Reply to Richard North on conformity assessment and the WTO option

I am pleased that Richard North has responded today to my series of posts on conformity assessment and the WTO option, which begin here. He claims, first of all, that I have made mistakes ‘relating to the activities of “notified bodies” and the continued recognition of UK bodies after a sudden withdrawal by the UK [from the EU].’

Status of UK Notified Bodies after Brexit

In part 2 of my series, in the section entitled ‘UK Notified Bodies after Brexit’, I explain why I think it ‘almost certain’ that, in the absence of an agreement on the mutual recognition of conformity assessment bodies, the UK Notified Bodies would lose their notified status. I conclude the section by stating that I will henceforth assume that to be the case for the sake of the analysis:

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‘The final decision’: or was it?

23 January 2013, Bloomberg: ‘this will be your decision’

David Cameron, in his Bloomberg speech of 23 January 2013 in which he announced a new Conservative Party policy to hold a referendum on the UK’s membership of the European Union, made it clear that the decision was to be made by the British people:

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The EU-US MRAs (part 2): agency recognition as an alternative to MRAs

In my last post I traced the origins of the 1998 EU-US MRA on conformity assessment back to the Internal Market program of 1985-92 and its New Approach to product safety legislation. In accordance with the Community’s obligations under GATT, and the GATT Standards Code in particular, both the essential requirements that products had to meet, and the assessment procedures laid down to demonstrate their conformity with those requirements, were formally exactly the same for all products, whether imported or produced in Member States. The potential problem for third countries was that the third party conformity assessment bodies (CABs), whose involvement was necessary for some products, were designated by Member States and might naturally be expected to be established in the same Member State. Would it therefore be necessary for third country manufacturers to send their products to laboratories in the Community for type approval? And where the procedures required inspection of the manufacturing facilities and quality control systems, would inspectors have to come from Europe to carry them out, at considerable expense to the manufacturer?

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The EU-US MRAs on conformity assessment (part 1): Fortress Europe?

In my last post, I examined a claim made by Nick Clegg that MRAs on conformity assessment are needed by exporters from third countries if consignments are not to be ‘impounded and checked at the EU border’:


I pointed out that China does not in fact have an MRA with the EU on conformity assessment, and explained how it is able to satisfy the EU’s product legislation requirements in the same basic way as an EU manufacturer does, either through a manufacturer’s Declaration of Conformity or, where third party certification is needed, through local test facilities, which are in either a subsidiary or subcontracting relationship with an EU-based Notified Body.

In this series of posts, to complete the picture as it were, I look at the second country named by Clegg as having an MRA with the EU and show that, while there are indeed two such EU-US MRAs in existence, they play only a marginal role in helping US manufacturers to export to the EU. The story of the first of these, the 1998 ‘Agreement on mutual recognition between the European Community and the United States of America’, is of considerable interest in its own right, as much effort was invested in attaining the agreement, and great hopes were attached to it, but in the end it is generally considered to have been a partial failure. There exist detailed accounts of the negotiations by Schaffer (2002) 1 and Deveraux  (2006) 2, which give valuable insights into the differences between US and EU regulatory structures, as well as into the conduct of trade negotiations. In this post, I try to explain the events that led in May 1989 to a joint US-EU commitment to open discussions on mutual recognition of conformity assessment.

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  1. G. Schaffer, ‘Reconciling Trade and Regulatory Goals: The prospects and limits of new approaches to transatlantic governance through Mutual Recognition and Safe Harbor Agreements’, Columbia Journal of International Law 29 (2002-3)
  2. C. Deveraux ‘The Mutual Recognition Agreements’ in ‘Case Studies in US Trade Negotiation’ by C, Deveraux, R. Lawrence, M. Watkins (Washington DC: Institute for International Economics). Another version with references can be found here.

Conformity assessment and the WTO option (part 3): testing in third countries

In my previous two posts (here and here), I have been examining the concern that has been expressed, notably by Andrew Tyrie MP, about the obstacles UK manufacturers might face in exporting to the EU under the WTO option, because of the need to ensure that their products continue to conform to EU product legislation, and because of a need moreover to be able to prove that conformity. I have been confining myself to products covered by the New Approach legislation, and have focussed on the form which that legislation has taken since the introduction of the New Legislative Framework in 2008. My main conclusions so far have been that:

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Conformity assessment and the WTO option (part 2)

In my previous post, I introduced the concern that has been expressed, notably by Andrew Tyrie MP, about the obstacles UK manufacturers might face in exporting to the EU under the WTO option, because of the need to ensure that their products continue to conform to EU product legislation, and because of a need moreover to be able to prove that conformity. I am confining myself to products covered by the New Approach legislation, and have focussed on the form that legislation has taken since the introduction of the New Legislative Framework in 2008. The main points were:

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Conformity assessment and the WTO option (part 1)

As the government prepares for the Article 50 withdrawal negotiation, and (probably) a parallel negotiation on the UK’s future relationship with the EU, it becomes increasingly important to form an accurate assessment of the consequences of failing to reach a trade agreement before the two years are up (and of failing also to agree an extension to the talks). If, as some say, the results would be disastrous, then we would be in an extremely weak negotiating position. Better, it is sometimes said, to join EFTA and the EEA, despite the admitted drawbacks of such a course, than to risk the WTO option. In particular, it has been argued that an extra requirement to prove the conformity of their products to EU product safety legislation would greatly hinder UK exporters.

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Article 50: who will negotiate for the EU?

The Barnier Appointment

In a Press Release on 27 July 2016, the European Commission announced that Commission President Juncker had appointed Michel Barnier as ‘Chief Negotiator in charge of the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 of the TEU [Treaty of the European Union]’:

Barnier press

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