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14th April 2017

Theresa May MP
10 Downing Street
London
SW1A 2AA
[By post]

Dear Prime Minister,


UKExit (aka Brexit)
1. The purported Article 50 Notification of 29th March 2017 is
unlawful
a. The effect of Queens Consent on the purported Royal
Prerogative
b. Does the Royal Prerogative exist in 2017? A deeper analysis
2. Article 4(3) TEU requires the UK to inform the European Union of
this issue
3. The urgency to resolve this matter
4. Those who need to be informed
5. Prospective legal action
6. Potential misconduct in public office
I write to ask you urgently and carefully to take advice on the legal issues
relating to UKExit (aka Brexit) to which I draw your attention in this letter.
Stated bluntly, I believe that the purported Article 50 Notification contained in
the letter of 29th March 2017 from yourself to President Tusk is unlawful.
The consequence, if such an analysis is correct, is that the United Kingdoms
attempt to use Article 50 of the Treaty on European Union must fail.
To state the obvious, such an eventuality is of enormous political and practical
significance.
To mitigate the potentially huge damage to UK businesses, academic institutions
and other entities I believe that the United Kingdoms unlawful attempt at exiting
the European Union must be terminated forthwith.
The purported Article 50 Notification of 29th March 2017 is unlawful
Two lines of constitutional analysis lead me to the conclusion that the purported
Article 50 Notification of 29th March 2017 is unlawful.
Neither line of argument was considered by either the Divisional Court in October
2016 nor the UK Supreme Court in December 2016.
The following two sections serve broadly to illustrate the nature and scope of the
legal issues which lead me to the conclusion that the purported Article 50
Notification of 29th March 2017 is unlawful.
I invite you to ensure that the Government, as a matter or urgency, seeks
counsels advice on this matter.
I also invite you promptly to ensure that the European Union institutions, UK
business organisations and the UK public are informed of these matters.
The effect of Queens Consent on the purported Royal Prerogative
The first issue is the effect of Queens Consent on any purported use of the
Royal Prerogative.
In this section, in order to approximate this analysis to conventional
constitutional assumptions, I have made the simplifying assumption that the
Royal Prerogative was in existence in both 1972 and 2016. (In the section which
follows I challenge the assumption that the Royal Prerogative continues to exist.)
Queens Consent is a necessary procedure in the consideration by Parliament
of bills which relate to the Queens prerogative, interest or both.
So far as I have hitherto been able to establish Queens Consent was not
considered by the UK Supreme Court in December 2016 nor (with less certainty)
has it been considered by any other Court in the UK in any previous case.
During the Parliamentary procedure relating to what became the European
Communities Act 1972 the Queen, by means of Queens Consent, placed her
prerogative at the disposal of Parliament for the purposes of the Bill.
I refer you to House of Commons Hansard for 15th February 1972, specifically the
following statement by Mr. Geoffrey Rippon:
I have it in command from Her Majesty the Queen to acquaint the House
that Her Majesty, having been informed of the purport of the Bill, has
consented to place Her interest and prerogative, so far as they are
affected by the Bill, at the disposal of Parliament for the purposes of the
Bill.
The relevant text is online at
http://hansard.millbanksystems.com/commons/1972/feb/15/european-
communities-bill#S5CV0831P0_19720215_HOC_230
To the best of my knowledge the letters which passed between the Government
of the time and Buckingham Palace are not in the public domain. Those letters
are, so I understand, part of the procedure by which Queens Consent is
obtained before a Bill is placed before Parliament.
The wording of Mr. Rippons statement suggests to me that the Royal Prerogative
as it relates to what is now the European Union, no longer exists since it was, if
Mr. Rippon is to be believed, made subject to Parliament with respect to all
matters to which the European Communites Bill applied.
The subsequent granting of Royal Assent established the ongoing nature of the
transfer of the Royal Prerogative to Parliament with respect to the European
Communities Act 1972.
If I am correct that Parliament has control of all matters relating to the European
Union which may have been formerly subject to the Royal Prerogative it follows,
at least in my analysis, that the Government cannot purport to use the Royal
Prerogative with respect to any Article 50 decision relating to the exit of the
United Kingdom from the European Union.
Let me now turn more directly to paragraphs 1 and 2 of Article 50 of the Treaty
on European Union which, for convenience, I reproduce here.
Article 50
1. Any Member State may decide to withdraw from the Union in
accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European
Council of its intention. In the light of the guidelines provided by the
European Council, the Union shall negotiate and conclude an agreement
with that State, setting out the arrangements for its withdrawal, taking
account of the framework for its future relationship with the Union. That
agreement shall be negotiated in accordance with Article 218(3) of the
Treaty on the Functioning of the European Union. It shall be concluded on
behalf of the Union by the Council, acting by a qualified majority, after
obtaining the consent of the European Parliament.
It is, I suggest, self-evident that a lawful Paragraph 1 decision must precede a
lawful Paragraph 2 notification.
The question therefore becomes whether or not a lawful decision has been
made by the United Kingdom to withdraw from the European Union.
At the Supreme Court the Government argued that it had made a Paragraph 1
decision by means of the Royal Prerogative.
If I am correct that the Queen, by means of Queens Consent, in 1972 placed
the Royal Prerogative in the hands of Parliament for the purposes of the
European Communities Bill then, so it seems to me, it is not possible for the
Government lawfully to purport to make use of the Royal Prerogative in 2016 for
a purpose within the scope of the European Communities Act 1972.
It occurs to me that the Government might, as an alternative, seek to argue that
Parliament had made a Paragraph 1 decision in its consideration of the
European Union (Notification of Withdrawal) Bill.
On 31st January 2017 the Secretary of State for Exiting the European Union,
during the Second Reading of European Union (Notification of Withdrawal) Bill,
stated the following:
The Bill responds directly to the Supreme Court judgment of 24 January,
and seeks to honour the commitment the Government gave to respect the
outcome of the referendum held on 23 June 2016. It is not a Bill about
whether the UK should leave the European Union or, indeed, about how it
should do so; it is simply about Parliament empowering the Government
to implement a decision already madea point of no return already
passed.
Mr. Davis informed the House of Commons on 31st January 2017 that the
decision to leave the European Union had already been taken.
So, I suggest, it is not possible for the Government fairly to argue that
Parliament, in its consideration of the European Union (Notification of
Withdrawal) Bill took the decision to leave the European Union.
Paragraph 1 of Article 50 of the Treaty on European Union indicates that a
decision must be carried out according to a Member States constitutional
requirements.
If, as I argue above, the Government cannot lawfully use the Royal Prerogative to
make an Article 50 decision and, so David Davis informed the House of
Commons, the decision had already been made before the Second Reading (on
31st January 2017) of the European Union (Notification of Withdrawal) Bill, the
question arises as to whether any lawful decision of the kind referred to in
Paragraph 1 of Article 50 of the Treaty on European Union has been made.
In the seeming absence of any lawful decision in the context of Paragraph 1 of
Article 50 of the Treaty on European Union, it seems to me that the purported
notification of 29th March 2017 is unlawful and visibly open to legal challenge.
Does the Royal Prerogative exist in 2017? A deeper analysis
The preceding section assumes that the Royal Prerogative existed in both 1972
and 2016. In doing so I reflect widely held assumptions about the UK Constitution
(should such exist).
In the hearings before the Divisional Court in October 2016 and the UK Supreme
Court 2017 it was a shared assumption of the Government and Gina Miller and
other litigants that the Royal Prerogative existed.
In my view there is good reason to question the widely held assumptions about
the existence of the Royal Prerogative and how and by whom, if it exists, it may
lawfully be exercised.
For convenience, I have subsumed some relevant questions under a heading
Does the Royal Prerogative exist in 2017?. Similar questions may be asked
regarding its existence (or otherwise) of the Royal Prerogative in 1972 and 2016.
The direct relevance as to the lawfulness or otherwise of the purported Article 50
Notification arises from the claim made to the UK Supreme Court that the
Decision in terms of Paragraph 1 of Article 50 of the Treaty on European Union
was made (implicitly by the Prime Minister) by means of the Royal Prerogative.
To the best of my knowledge constitutional questions of the kind expressed in
this section have never been considered in detail in a UK Court.
Those questions are, I suggest, fundamental to any credible consideration of
whether or not the Royal Prerogative could be used for the purposes of an Article
50 decision.
I believe that such questions may require to be asked in the prospective legal
action to which I refer elsewhere in this letter.
1. Is there in 2017 one Royal Prerogative or two? In 1602 there existed,
according to conventional thinking, two Royal Prerogatives that for
Scotland and that for England. Did both survive the Union of the Crowns in
1603? Or did only one survive?
2. If one assumes that there is a single Royal Prerogative following the Union
of the Crowns in 1603, is that single Royal Prerogative the Scottish Royal
Prerogative, the English Royal Prerogative, or what might be termed the
AngloScottish Hybrid Royal Prerogative?
3. Given that a Scottish King assumed the throne of England in 1603 did the
English Royal Prerogative lapse or otherwise fall into abeyance? Did the
English Parliament have lawful authority with respect to the means by
which the Scottish Royal Prerogative was passed to future generations?
4. One may also ask serious questions about the assumed legitimacy of the
so-called Glorious Revolution and the impact of that on questions relating
to any assumed Royal Prerogative. For example, can an English Parliament
which effectively deposed the then lawful King (James VII of Scotland and
II of England) be considered as anything other than treasonous? Did such
an English Parliament which essentially assembled itself have the lawful
right to declare a foreign invader, William of Orange, to be king?
5. Given such legal questions about the so-called Glorious Revolution does
the Act of Settlement 1701 lawfully define to whom the Crown of England
is to be given? Not least among the causes for concern is that the route of
succession specified is visibly sectarian and discriminatory.
6. On what basis does the Executive purport to exercise the Royal
Prerogative? Is such supposed exercise by the Executive of the Royal
Prerogative constitutional? If it is claimed that it is constitutional, on what
basis does such a claim rest? By what means did a supposed authority
unique to the Sovereign pass to the Executive?
7. On what date and by whom was any supposed Royal Prerogative used by
the Executive to decide that the United Kingdom should exit the
European Union (in the meaning of Paragraph 1 of the Treaty on European
Union)? For example, did the Queen authorise the Prime Minister to make
a decision in the meaning of Paragraph 1 of Article 50 of the Treaty on
European Union?
It seems to me that questions such as the foregoing lead to the conclusion that
no Decision has been made of the kind alluded to in Paragraph 1 of Article 50
of the Treaty on European Union.
Without such a Decision it seems to me that any purported Notification in the
meaning of paragraph 2 of Article 50 of the Treaty on European Union is, at a
minimum, highly questionable and is highly likely to be unlawful.
Article 4(3) TEU requires the UK to inform the European Union of this
issue
You are, I feel sure, aware of Paragraph 3 of Article 4 of the Treaty on European
Union and the duty of sincere cooperation which it imposes on Member States.
For convenience, I reproduce the text of Paragraph 3 of Article 4 TEU here:
3. Pursuant to the principle of sincere cooperation, the Union and the
Member States shall, in full mutual respect, assist each other in carrying
out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or
particular, to ensure fulfilment of the obligations arising out of the Treaties
or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks
and refrain from any measure which could jeopardise the attainment of
the Union's objectives.
There can, I suggest, be no doubt that the upcoming negotiations between the
United Kingdom and the European Union regarding UKExit (Brexit) flow from
the Treaties.
Where you have been made aware of the possibility that the Article 50
Notification may be unlawful it seems to me that pursuant to the principle of
sincere cooperation the United Kingdom has a legal duty promptly to inform the
European Union institutions of the existence of the question.
I ask that, urgently, you take action to ensure that the institutions of the
European Union are so informed.
The urgency to resolve this matter
If I am correct that the purported Article 50 Notification of 29 th March 2017 is
unlawful it seems to me that several very serious issues flow from that
understanding.
Large sums of public money are being spent on preparations for UKExit
(Brexit).
If I am correct that the purported Article 50 notification is unlawful those public
funds are being spent to no good effect.
Similarly, a considerable amount of effort, and presumably expenditure, is being
expended by the European Union to respond to UKExit (Brexit). Those funds
are similarly being wasted, if one assumes that the purported Article 50
Notification is unlawful.
Further, you cannot be unaware that UK businesses are expending large amounts
of effort in making contingency plans for the anticipated UKExit (Brexit).
It seems to me that you have a duty to ensure that UK business organisations,
for example the Confederation of British Industry, are informed of these concerns
so that they may take legal advice on the issue.
In addition, the purported Article 50 Notification has raised huge concerns among
many residents of the United Kingdom.
It seems to me that you, as Prime Minister, have a duty to ensure that the public
is informed of this issue.
Those who need to be informed
I ask that you inform forthwith the Secretary of State for Exiting the European
Union of the existence of the questions regarding the lawfulness of the purported
Article 50 Notification.
Further I ask that you forthwith inform the relevant individuals and institutions of
the European Union that this question has been raised with you.
In addition, I ask that this matter is placed before the Joint Ministerial Committee
so that the devolved administrations are fully informed regarding this hugely
important matter.
Of course, you will wish to seek counsels opinion on these matters to arrive at a
considered view as to whether or not the purported Article 50 Notification is
fatally and irredeemably flawed.
Prospective legal action
I am in the early stages of assembling a group of like-minded individuals to begin
legal action with respect to the perceived unlawful nature of the purported
Article 50 Notification of 29th March 2017.
Given that it will take some time to carry out practical preparatory steps with a
view to such legal action it seems to me to be less damaging to UK businesses
and to the long-term interests of the United Kingdom that the UK Government
should take definitive steps now to resolve the issue.
I invite you to consider how you should proceed, given your duties as Prime
Minister of the United Kingdom.
Potential misconduct in public office
You are likely aware that under English Law of the existence of the common law
offence of Misconduct in Public Office.
The Crown Prosecution Guidance on Misconduct in Public Office lays out four
criteria which relate to charging decisions on such an offence.
Those criteria are available online here:
http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/
For your convenience I summarise them here:
1. A public officer
2. Acting as such
3. Wilful neglect or misconduct
4. Without reasonable excuse or justification
If I am correct that EU Law (specifically Article 4(3) of the Treaty on European
Union) requires the United Kingdom to inform the European Union of the question
regarding the suspected unlawful nature of the purported Article 50 Notification
of 29th March 2017, failure on your part to ensure that the European Union is so
informed might reasonably be construed as satisfying the criteria expressed in
the Crown Prosecution Service Guidelines.
Distribution
This letter is an open letter.
I reserve the right to distribute copies of this letter to persons and institutions
who may have an interest in the matters to which I draw your attention.
Actions requested of you
I ask that you promptly acknowledge receipt of this letter.
I further ask that, as a matter of urgency, you seek counsels opinion as to the
validity and potential importance of the lines of legal argument to which I draw
your attention in this letter.
I also ask that you urgently take all relevant steps to ensure that the United
Kingdom (as a Member State) complies with its duty expressed in Paragraph 3 of
Article 4 of the Treaty on European Union.
I take that duty to require the United Kingdom promptly to inform all relevant
institutions of the European Union of the existence of the questions of the
lawfulness (or otherwise) of the purported Article 50 Notification of 29 th March
2017.
I ask that you take all relevant steps to ensure that the devolved administrations
are made fully aware of this issue and your response to it.
Yours sincerely

(Dr) Andrew Watt