Report comment

Mr Maloney - I hope it is not deemed to be an unworthy motive to seek to uphold the rule of law and express concern when the role of the judiciary is traduced, as distinct from their judgments being considered on their merits and subjected to appropriate comment, criticism and, where necessary appeal, if they are thought to be wrongly decided.

Since the drafting of the 2015 Act has been the subject of comment in previous posts, I would suggest on reflection that the Act could have contained a positive provision empowering the Secretary of State to activate the article 50 procedure in the event of a majority vote in favour of leaving the EU. That would have prevented the need for any court proceedings because Parliament would itself have decided upon the activation of the article 50 process by delegating it to the appropriate Government minister. Conceivably, such a provision could even have placed an obligation on the Secretary of State to give notice under article 50 within a stated time after the holding of the referendum. That would, at least in an indirect sense, have made the exit process binding upon the Government (at least if EU law is such that an article 50 notice cannot be withdrawn, about which there has been some debate, although the parties to the recent proceedings assumed this to be the case). However, the Act did not do this. It thereby left the exit process to be worked out after the referendum, if that became necessary (as it has), with the benefit of whatever determinations from the court as might be necessary on any areas of doubt (as we now have on one point).

With hindsight, the question can now be asked ‘if the Act could have dealt with the matter of how article 50 was to be triggered, should this be necessary, then why did it not do so?’ My suspicion (since I know nothing of what actually happened) is that, if the question of what would happen in the event of the referendum vote going against staying in the EU was explored during the drafting of the Bill (as would be expected) the Government would have decided against dealing with any issues to do with the exit process in the Bill, for two main reasons. First, putting something of this kind in the Bill risked sending equivocal messages that could undermine the stated Government policy to remain within the EU. Secondly, in the event of an exit vote, it would be foolhardy to add legal restrictions to the political pressures that would undoubtedly fall on the Government in the event of a No vote. In that event the Government would have wanted as much room to manoeuvre as possible, with a reasonable amount of thinking and planning time in which to work out how best to cope with the, for them, unwelcome result (not to mention periods without effective leadership whilst a leadership tussle is resolved). In short, the political mantra seems to be: ‘say nothing about any Plan B if all you want is Plan A’. The trouble with that strategy is that, where it is coupled with not actually having any Plan B, then things become very messy when circumstances force the need for such a plan.