Brexit II? The legal issues of revoking the notification to leave the EU but then notifying to leave again

Ronan McCrea, Professor of Constitutional and European Law, University College London

The CJEU ruling in the Wightman case (discussed here) has provided important additional information in relation to the Brexit process. The Court accepted arguments first made by Piet Eeckhout and Eleni Frantziou that notification of an intention to withdraw from the EU could be withdrawn unilaterally by the UK without the need for permission of the remaining EU 27.

This is important and may strengthen the hand of those arguing that the UK government should hold a second referendum with remaining the EU as an option on the ballot paper. However, the ruling of the Court of Justice is disappointing. It fails to provide meaningful guidance in relation to key questions in relation to revocation of Article 50.

The test set out by the Court for unilateral revocation is as follows:

-          revocation must take place before the Withdrawal Agreement comes into force (or if there is no such agreement, within the two-year period from notification set down in Article 50),

-          the revocation must take the form of notification in writing to the European Council following a to revoke that was taken in accordance with the constitutional requirements of the Member State in question,

-          revocation must be ‘unequivocal and unconditional’ which means ‘the purpose of that revocation is to confirm the EU membership of the Member State concerned’.

Notably absent from this test is the condition suggested by the Advocate General that the revocation must be sincere and done in good faith which as Oliver Garner noted could be very difficult to apply in practice.

This is useful information from the Court. We now know that, if the UK authorities change their mind on Brexit, proceed to reverse the decision to leave in accordance with the requirements of the British constitutional order and give written notification of this decision to the European Council before March (or later, in the event that Brexit Day is extended by joint agreement of the UK and the EU27), the UK can remain in the EU on its existing terms.

This is important as there had been suggestions that if the UK wanted to remain in the EU in this way, it may have needed the consent of other Member States who may have taken advantage of the UK’s weak bargaining position to remove benefits, such as the rebate on payments to the Union, that the UK currently enjoys.

It is not entirely certain whether a valid revocation would require a referendum under EU law. The Court’s ruling refers three times to the decision to revoke taking place through ‘a democratic process’ but in the operative part of the ruling the reference to democratic processes is dropped and only ‘constitutional requirements’ are referred to.

Some may argue that it would be undemocratic to reverse the Brexit decision without a referendum. However, representative democracy is a valid form of democratic decision-making. In addition, under the British constitutional system, Parliament remains the supreme legislative authority so if Parliament decided to reverse Brexit, such a decision would be in accordance with the constitutional requirements of the UK and is unlikely to be second-guessed by the CJEU (however unlikely it is in political terms, that this situation would arise).

Either way, thanks to the CJEU ruling we now know that if all of these hurdles are overcome and the UK manages to take a definitive decision to reverse Brexit before the end of March 2019, it cannot be stopped from remaining in the EU on its existing membership terms.

While that is somewhat useful information, it is not particularly useful because it is unlikely in the extreme that the UK will manage to take a definitive decision to reverse Brexit in the next couple of months.

For one thing, the UCL Constitution Unit has shown that a new referendum will need at least 22 weeks to organize. This means that even if the UK Government decides it wants to hold a referendum to reverse Brexit it is likely to need to obtain the agreement of the other 27 Member States to extend the two-year period under Article 50 to give it time to organize this vote. Whether the Member States would agree to such an extension unless the UK government promised to campaign for remain is very uncertain.

Perhaps more seriously, the Court’s judgment leaves us largely in the dark as to what would happen in the not unlikely scenario that the UK seeks to revoke without having definitively decided to remain in the EU. Indeed, it was this issue of the potential for a right of unilateral revocation to be abused that was the core of the arguments made by the Commission and Council in Wightman. And on this issue, the Court has provided little useful guidance.

Consider the following scenarios (none less likely than the UK definitively deciding to reverse Brexit before March 2019):

1)      The UK government seeks to revoke Article 50 in early March 2019 but makes it clear that this revocation will need subsequently to be ratified by a referendum of the British people.

2)      The UK government revokes Article 50 and declares that the UK will be staying in the Union. However, three months later, it declares that due to changed political circumstances, it is triggering Article 50 once more.

3)      The UK revokes Article 50 saying that it is bringing the current exit procedure to a close but makes it clear that it will retrigger in the near future to begin a new process (in which the UK is better prepared and has a clearer idea of what it wants).

In all three scenarios, we are faced with a situation where the revocation is legally unequivocal but is (or is later revealed to be) politically equivocal. This would seem to be an abuse of the right of revocation and raises the prospect of the UK being allowed to circumvent the strict two-year time limit set out in Article 50. As it goes against the requirement set down by the Court in Wightman that revocation be unequivocal it should, in theory, be capable of being challenged. But working out how such a challenge would work is very difficult.

As the act of revocation is unilateral, so there is no act of acceptance on the part of the Council that could be challenged. Perhaps a Member State or EU institution could apply to the General Court to annul the revocation by the UK or (given that the giving of a notice of revocation is a sovereign act) to get a declaration that the act of revocation did not produce consequences within the EU legal order on grounds that it failed to satisfy the Wightman criteria. If the courts did not intervene then an equivocal revocation would stand, something that seems to go against in the Wightman judgment. It would also seem to defeat the temporal limits on the withdrawal process enshrined in Article 50.

If the EU courts did intervene and annul the revocation then they would face a nightmare in seeking to give effect to that ruling. In scenario 2, the Court would be faced with retrospectively annulling a revocation meaning that the in theory, the UK would actually have left the Union back in March 2019 without realizing it.

Even in relation to scenarios 1 and 3, it is highly likely that any ruling from the EU courts would be given either after or very close to the end of the two-year time limit in Article 50. This means that the ruling could have the equally chaotic effect of pushing the UK out of the Union in a chaotic no-deal fashion either immediately or almost immediately. All of these outcomes would bring absolute chaos not to mention giving Brexiters the chance to blame their bete noire, the Court of Justice, for the chaos of a no deal exit.

The EU courts could, as they have done before, seek to limit the chaotic consequences of their ruling by refusing to give immediate effect to the annulment of the revocation. That would also involve the courts in a political nightmare by requiring them to decide how long the UK would have before being chaotically ejected from the Union.

By giving a unilateral right to withdraw notification without any possibility for the Council to exercise its political judgement over its sincerity or equivocal nature, the Court of Justice has left itself as the only institution with a role in limiting potential abuse of this right. This leads it into adjudicating on inherently political matters such as the likely future actions of the UK authorities or deciding how much additional time the UK should be given to avoid a chaotic exit.

Furthermore, we simply don’t know how the Court would carry out the role it has granted itself. By requiring that revocation be unequivocal and bring the process of leaving to an end, the Court has implied that it would exercise some power of review over acts of revocation but has refused to provide any guidance about how this power would be exercised. Given how much focus the Council and Commission placed on the issue of abuse of the right to revoke, the failure to give guidance on this issue is very disappointing.

The UK government had asked the Court to refuse to give a ruling on the grounds that the question referred by the Scottish court was theoretical as the UK government has given no indication that it wants to withdraw its notification. Once the Court decided to give a ruling it really should have attempted to give guidance that was as useful as possible.

Unfortunately, it ended up giving a ruling that only really applies to the extraordinarily unlikely scenario of the UK definitively renouncing Brexit before March 2019 (or a later date in the event of an extension) and that gives very little useful guidance in relation to the key issue that preoccupied the Commission and Council, the potential for misuse of revocation in order to circumvent the temporal limitations imposed by Article 50.

All of this means that in most likely scenarios, political actors find themselves acting without much idea of what the applicable law is. This increases the likelihood that we will find ourselves before the Court of Justice again with CJEU judges struggling to rule on inherently political matters such as the likely future action of the UK government. Worse, next time the Court rules the clock will have moved ever closer to midnight in Brexit terms producing an even more fraught atmosphere and even more likelihood that the Brexiters’ favourite judicial bogeyman will become a scapegoat for the chaos of a no deal Brexit.

In these circumstances the Court may well regret that it did not take the chance to rule that inherently political matters such as the assessment of the sincerity of the revocation of Article 50 were not left to political bodies such as the European Council.

Barnard & Peers: chapter 27

Photo credit: WiredUK