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first made by Piet Eeckhout and Eleni Frantziou that notification of an intention to withdraw from the EU could be withdrawn unilaterally by the UK without the need for permission of the remaining EU 27.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

Brexit: you can U-turn if you want to. The CJEU judgment in Wightman

Professor Steve Peers, University of Essex

Today’s Full Court judgment in the Wightman case confirms that the UK can unilaterally withdraw its notification that it intends to leave the EU, on the most generous possible terms. It broadly follows last week’s non-binding opinion from an Advocate-General, discussed here. (See also the discussion here of the national court background to the proceedings, and the discussion here of the arguments for and against unilateral revocability. The EU courts have also ruled on a challenge to the withdrawal agreement negotiations in Shindler, and on the UK’s current status as a Member State in RO: see discussion here and here).

The judgment

First of all, the Court rejects the UK government’s argument that the case is hypothetical, noting that some of the litigants are MPs who will be voting imminently on the proposed withdrawal agreement (unless that vote is delayed). It displays its usual deference to national courts’ decision to ask the CJEU questions about EU law, which leads to a presumption of relevance.

On the merits, the Court takes its usual view that EU law should be interpreted taking account of its wording and objectives, but in light of its context and the provisions of EU law as a whole. On the wording, the Court notes that Article 50 TEU (the Treaty provision on the withdrawal process) is silent either way about the revocation of a notification of the intention to withdraw from the EU.  But the Court points out that Article 50 refers to notifying an ‘intention’ to withdraw: ‘An intention is, by its nature, neither definitive nor irrevocable’.

Observing that the decision to withdraw its unilateral, in accordance with a Member State’s ‘own constitutional requirements’, the Court rules that

the Member State is not required to take its decision [to withdraw] in concert with the other Member States or with the EU institutions. The decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice.

As for the objectives of Article 50, the Court characterised it as having two objectives: ‘first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion’. It then located the issue of revocation as part of the first of these objectives: linking revocation with the sovereign decision to withdraw, and clarifying the timing of the right of revocation:

…the sovereign nature of the right of withdrawal enshrined in Article 50(1) TEU supports the conclusion that the Member State concerned has a right to revoke the notification of its intention to withdraw from the European Union, for as long as a withdrawal agreement concluded between the European Union and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that provision, has not expired.

It is clear that the unilateral right to revoke the notification still exists if the Article 50 period is extended (which must be unanimously agreed by the withdrawing Member State and the EU27). The Advocate-General’s opinion had conversely been unclear on this; it’s a crucial point since an extension would likely be necessary if another referendum on Brexit were held in the UK.

What rules apply to unilateral revocation? Since Article 50 is silent, the Court says that the same rules apply to withdrawal as applied to the original notification: ‘it may be decided upon unilaterally, in accordance with the constitutional requirements of the Member State concerned.’ The Court also confirms that a revocation would mean that the UK retains its current status as an EU Member State, as the revocation would reflect ‘a sovereign decision by that State to retain its status as a Member State of the European Union, a status which is not suspended or altered by that notification’ (following the CJEU’s previous ruling in RO), ‘subject only to the provisions of Article 50(4) TEU’ (which says that a departing Member State does not participate in EU decision-making concerning the withdrawal agreement). Revocation ‘is fundamentally different’ from a request for extension of the Article 50 time period, which entails unanimous consent of the EU27, rejecting the analogy with the second objective of Article 50 which the EU Commission and Council wanted the Court to make.

As for the context of Article 50, the Court stressed the Treaty objectives of an ‘ever closer union among the peoples of Europe’, EU citizenship, and the values of liberty and democracy, noting that ‘the European Union is composed of States which have freely and voluntarily committed themselves to those values’, and that ‘any withdrawal of a Member State from the European Union is liable to have a considerable impact on the rights of all Union citizens, including, inter alia, their right to free movement, as regards both nationals of the Member State concerned and nationals of other Member States’. Therefore, ‘given that a State cannot be forced to accede to the European Union against its will, neither can it be forced to withdraw from the European Union against its will’, which would be the case if a ‘Member State could be forced to leave the European Union despite its wish — as expressed through its democratic process in accordance with its constitutional requirements — to reverse its decision to withdraw and, accordingly, to remain a Member of the European Union’.

The Court also looks at the process of drafting the earlier version of Article 50, during which various proposed amendments were rejected, ‘on the ground, expressly set out in the comments on the draft, that the voluntary and unilateral nature of the withdrawal decision should be ensured’. Moreover, the Court’s findings were ‘corroborated’ by the Vienna Convention on the Law of Treaties, ‘which was taken into account’ when drafting the earlier version of Article 50. That Convention states ‘in clear and unconditional terms, that a notification of withdrawal’ from a treaty ‘may be revoked at any time before it takes effect’.

Next, the Court rejects the argument of the Council and the Commission that revocation would need unanimous consent, as this ‘would transform a unilateral sovereign right into a conditional right subject to an approval procedure’, which ‘would be incompatible with the principle…that a Member State cannot be forced to leave the European Union against its will’.

Finally, the Court sets out the conditions for revocation; it:

…must, first, be submitted in writing to the European Council and, secondly, be unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.

The Court does not otherwise address the argument of the Council and Commission, which was discussed by the Advocate-General, that there must be a ‘good faith’ element to revocation.

Comments

The Court’s judgment may ultimately have no impact on the political likelihood of whether the UK reverses Brexit – which I continue to think is very unlikely. It does lower the potential barriers to a U-turn by the UK, but this may only strengthen the resolve of Brexit supporters, rather than change their mind.  

Let’s look at the judgment from a legal perspective. Even more so than the Advocate-General’s opinion, this ruling strongly supports unilateral revocation of a notification on the easiest possible terms. The admissibility of the case is unsurprising in light of the prior case law deferring to national courts. As the Court says, Article 50 is silent on the issue and that does not point necessarily to a resolution to the issue, but the Court was right to point out that there’s an explicit reference to an intention to withdraw in the wording of Article 50.

The Court’s ruling on the unilateral nature of the initial notification to withdraw confirms the recent EU General Court judgment in Shindler on the nature of the UK’s initial decision, which was not ‘approved’ or filtered by the EU institutions upon receipt of the notification. The parallel which today’s judgment draws between notification and revocation suggests that if Shindler is upheld on appeal on this point, as it logically should be, there could be no review by EU institutions of the revocation, provided that it meets the very minimal requirements set out by the Court (and discussed further below).  

It seems that the key to the logic of the judgment is the Court’s characterisation of Article 50 of having two objectives, and then categorising revocation of notification as an aspect of the first objective – the process of deciding to withdraw – instead of an aspect of the second objective – the orderly withdrawal process. It followed from this that the Court drew an analogy with the unilateral nature of the decision to withdraw, rather than the bilateral nature of the withdrawal agreement negotiation process, and in particular the unanimous requirement to extend that process.

As for the link to international law, it contradicts the usual autonomy of EU law from international law that the Court refers to itself at the outset of the judgment, but the Court justifies that because the drafters of what became Article 50 took the Vienna Convention into account. It is, in any event, only a secondary part of the Court’s reasoning.

Finally, on the conditions for revocation, the submission in writing is straightforward enough: the EU institutions could surely work out whether a revocation was genuine or not, in light of the publicity that would obviously accompany it. The requirement of an ‘unequivocal and unconditional’ revocation, ending the withdrawal process on unchanged terms, suggests that the notification of revocation must confirm that the UK is not intending to renegotiate its membership or to send another notification shortly afterward. Implicitly if the UK revocation arguably did either of those things then the legal question would arise of what the European Council could do about it. It could either refuse to accept the notification, with the result that the UK might then challenge that decision; or it could simply decide to cross that bridge when it came to it, either refusing to renegotiate membership or (more problematically) to accept a fresh notification of withdrawal if that followed shortly after a revocation of the first notice (again, that decision could then be challenged).  

But the Court, unlike the Advocate-General, makes no mention of the domestic process leading up to revocation, noting only that it must be in accordance with the UK’s own constitutional requirements. In Shindler, the General Court said that these requirements were not for the EU institutions to judge, but the UK’s national courts and political institutions, with the proviso that a national Court might ask the CJEU if a particular requirement was compatible with EU law.

Overall, then, legally the road is clear for a U-turn if the UK wants to – but that is irrelevant as long as the lady is not for turning. Whether she changes her mind – or someone else takes the wheel and does so instead – remains to be seen.

Barnard & Peers: chapter 27

Photo credit: Millenium Post

Revoking the notice to withdraw from the EU? The opinion in Wightman

Professor Steve Peers, University of Essex

Introduction

Was sending the Article 50 notification of withdrawal from the EU like jumping off a cliff – impossible to change your mind after jumping? Or was it rather like setting off to the shops, where you can change your mind about shopping while on the way there, in the car park, or even in the shop itself – perhaps because you discover that the promised discounts don’t exist, the management is under police investigation, and the massive Turkish foods section consists of a couple of dusty hazelnut packets?

We should soon find out from the Court of Justice. In the meantime we have today’s non-binding opinion from an Advocate-General. Although the Court might not follow the opinion, the judges will consider it carefully, and it’s worth discussing the issues which it raises. (See also the discussion here of the national court background to the proceedings, and the discussion here of the arguments for and against unilateral revocability. The EU courts have also ruled on a challenge to the withdrawal agreement negotiations, and on the UK’s current status as a Member State: see discussion here and here).

The opinion

First of all, the opinion dismisses the UK government’s argument that the case is hypothetical, because the government has not decided to withdraw the Article 50 notice and has no intention of doing so. In particular, the outcome of the ruling might be relevant when MPs cast their vote on whether to approve the withdrawal agreement with the EU, or on deciding what to do if the agreement is not approved.

The opinion then agrees with the petitioners – mainly UK politicians in the Westminster Parliament, the Scottish Parliament and the European Parliament – that the notification is in principle unilaterally revocable. First of all, it notes that Article 50 is silent on the issue of revocation, and so notes that three outcomes are possible: no revocation, unconditional revocation, and revocation with conditions. It approaches the issue by looking first of all at general public international law, and then at the specific wording of Article 50, followed by the issue of agreed revocation.

As for international law, the opinion is uncertain as to whether revocation of notification of withdrawal from a treaty is firmly established as a matter of customary international law (although there are several examples). The right to revoke withdrawals from a treaty unilaterally is, however, expressly set out in the Vienna Convention on the law of treaties (VCLT). The Opinion discusses whether the VCLT applies to withdrawal from the EU, and reaches the conclusion that it does not, given that the EU itself and some of its Member States are not parties to that Convention. Nevertheless, it argues that the VCLT may be useful when interpreting Article 50.

As for the interpretation of Article 50 as such, a literal interpretation does not resolve the question, since Article 50 is silent on the question of unilateral revocation of a withdrawal notice.  So it’s necessary to examine the context of the Article. In the Advocate-General’s view, it starts with a national phase ‘exclusively’ for the withdrawing State, when it decides on its intention to withdraw, ‘only conditional’ on following ‘that State’s own constitutional requirements’. The logical corollary is a unilateral power to revoke that decision, as ‘a manifestation of that State’s sovereignty’. So unilateral powers continue into ‘the negotiation phase, which begins with the notification of the intention to withdraw to the European Council and culminates two years later, unless there is an extension by unanimous decision of the Council.’ (Note that the withdrawal agreement itself can also set a later date, although the draft withdrawal agreement concluded between the UK and EU does not). More generally, like ‘other areas of law, in the absence of an express prohibition or a rule which provides otherwise, whoever has unilaterally issued a declaration of intent addressed to another party, may retract that declaration until the moment at which, by the addressee’s acceptance, conveyed in the form of an act or the conclusion of a contract, it produces effects’.

Next, the opinion observes that Article 50(2) TEU refers to a notification of an ‘intention’ to withdraw, ‘not to withdrawal itself’, which happens later. An ‘intention’ is ‘not definitive and may change’; the notification of that intention to a third party ‘may create an expectation in that party, but does not assume an obligation to maintain that intention irrevocably’.

Interestingly, the opinion also refers to the possibility of a withdrawal decision being ‘annulled, if the body having authority (ordinarily the highest courts of each State) holds that that decision was not adopted in accordance with the constitutional requirements.’ In this scenario, ‘there is little doubt that the State which notified its intention must also make known that it unilaterally revokes that notification, as its initial decision lacked the essential precondition.’

Similarly, following action ‘carried out in accordance with its constitutional requirements (for example, a referendum, a meaningful vote in Parliament, the holding of general elections which produce an opposing majority, among other cases)’, an initial decision might be ‘reversed and the judicial and constitutional basis on which it was sustained subsequently disappears’. Again, in that scenario, ‘that State can and must notify that change to the European Council’. These scenarios have international precedents in practice, as well as corresponding to Article 68 of the VCLT.

Furthermore, the opinion argues that insisting on a Member State leaving under such circumstances would be ‘a result contrary to common sense’, and accepting revocation would ‘respect’ a national parliament’s role as part of a Member State’s national identity. Refusal to accept revocation would entail a de facto forced exit from the EU.

The possibility of applying to rejoin did not contradict this interpretation either, as it would be illogical to spend the Article 50 time period negotiating future membership. And as the CJEU had already noted, a Member State remains a Member State throughout the Article 50 time period.

The opinion then rejected the contrary arguments of the Commission and Council. In the Advocate-General’s view, there is still a unilateral element after the notification is sent, because the withdrawing Member State can simply refuse to negotiate a withdrawal agreement. The power to extend the negotiating period did not mean by a contrario reasoning that no power to withdraw the notification exists. The Council’s argument about costs was unconvincing because ‘the financial costs (for the European Union and its citizens) arising from a Member State’s withdrawal would far exceed the (minimal) costs generated by the revocation’.

The opinion bolsters its argument by adding that the unilateral revocability would enhance the ‘ever closer union’ clause in the Treaties, ‘national identities’ of the Member States, and the rights of EU citizens would be enhanced by permitting unilateral revocability. It also argues that the historical background to drafting Article 50 supports the same result.

However, the opinion argues that some conditions exist. There must be a formal notification of revocation, matching the notification to withdraw. Equally, national constitutional requirements must be respected. Although he accepts that ‘this is an issue which falls to be determined by each Member State’, he argues that in the UK, the requirement for parliamentary authorisation to leave would logically be matched by parliamentary approval to revoke the notification. (He makes no specific mention of whether an Act of Parliament would be required). There would be no need to justify the decision to revoke.

There would also be a temporal limit: revocation ‘is possible only within the two-year negotiation period that begins when the intention to withdraw is notified to the European Council’, and ‘once the withdrawal agreement has been formally concluded, which implies the agreement of both parties’, revocation would no longer be possible either. The discussion here is inconsistent with the opinion’s previous reference to the possibility of extension of the Article 50 time limit.

Next, the ‘principles of good faith and sincere cooperation’ in Article 4(3) TEU set a limit. On this point, the EU institutions were concerned that a Member State ‘could revoke its notification and halt the negotiations if they were not favourable to it’, and ‘resubmit its notification of intention to withdraw, thus triggering a new two-year negotiation period’, circumventing the time limits on the process. But the Advocate-General rejected these arguments: ‘the possibility that a right may be abused or misused is, generally speaking, not a reason to deny the existence of that right’. A means to prevent abuse of the right must be found instead. The established ‘abuse of rights’ principle in EU law could be ‘applied in the context of Article 50 TEU, if a Member State engaged in an abusive practice of using successive notifications and revocations in order to improve the terms of its withdrawal from the European Union.’

There was no indication that any abuse was planned, and ‘any abuse could occur only when a second notification of the intention to withdraw is submitted, but not by unilaterally revoking the first.’ In the Advocate-General’s view, a large number of ‘tactical revocations’ was unlikely, in that the national ‘constitutional requirements’ rule would function as a ‘filter’, given the requirement of (for instance) elections, court decisions or referendums.

Finally, the opinion accepts that revocation can be agreed, in the event of a request from the departing Member State and unanimous agreement in the European Council.

Comments

First of all, the opinion convincingly argues that the case is not hypothetical. It rightly recalls the case law according to which national court references are presumed to be relevant; that presumption can only be rebutted in limited cases. There is a strong argument to answer these questions given the status of those petitioners who are MPs; and otherwise there could be a catch-22 scenario where MPs hesitate to vote on whether a referendum could be held because they do not know if unilateral revocation would be possible.

The main argument for unilateral revocability is equally convincing – in particular as regards the importance of the word ‘intention’, and the emphasis on the sovereign decision-making power of Member States. As regards safeguards against abuse, though, it is at least conceivable that national constitutional requirements will not always work as a filter, and so it would be preferable to spell out what limits – perhaps in the form of a refusal to consider a notification valid within a year or two of the previous notification, or the resumption of an Article 50 process where the last process left off – would be applicable.

It is unfortunate that the opinion is vague about the time limit issue though. Would notification only be possible within the two year time limit, or also during the the time limit as extended? The opinion is contradictory; the Court judgment (if it goes down these lines) should not be. The possibility of a delayed time limit in the withdrawal agreement should also be mentioned. The best interpretation, keeping with the logic of the opinion, is that revocation would also be possible within the extended time period.

Revocation with consent does not easily fit within the literal wording of Article 50, because there is no process for consenting. Moreover, it’s unlikely that any Member State would seek this route if it could revoke unilaterally instead. It might be used in a scenario where the Member State’s current membership was being renegotiated, though only Tony Blair thinks that might happen as regards the UK.

Overall, if followed by the Court, this opinion would be an unqualified victory for those arguing for unilateral revocation. Whether it changes the political dynamics remains to be seen, and I remain of the view that another referendum (which would still have to be won by the Remain side) is very unlikely. In any event, unilateral revocability could still prove relevant as regards other Member States that might someday wish to leave the EU.

Barnard & Peers: chapter 27

Photo credit: The Irish Times

Scotching Brexit? Background to the Wightman case about reversing the Article 50 notification unilaterally

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk

As the Brexit clock ticks down, and the diametrically opposed objectives of Theresa May's negotiating imperatives become ever more exposed, the clamour to clarify the processes and procedures surrounding Brexit intensifies.

At the tail end of 2017, a group of seven Scottish politicians, from across the political spectrum and from all three legislatures for Scotland (the Scottish Parliament, the UK Parliament and the European Parliament) commenced an action in the Scottish Court of Session, essentially seeking an answer to the simple question 'Can a member State of the European Union unilaterally revoke their Article 50 TEU notification to leave the EU?' The group is headed by Andy Wightman MSP, and the other pursuers are Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP and Joanna Cherry QC MP. English MPs Tom Brake and Chris Leslie were joined in the case in May 2018.  The case was crowdfunded through the Good Law Project, headed by Jolyon Maugham, who is also a petitioner.

The pursuers are keen to know the answer to this question since they believe that the route to Brexit is not unidirectional and binary. For the pursuers, representing constituents in a nation of the United Kingdom which voted overwhelmingly to remain in the EU referendum, Brexit does not have to result in 'Deal or No Deal'. Rather, there may be a third way: A People's Vote that includes the option to Remain in the European Union.

In order for a Scottish court to make any pronouncement on this legal question, the court would have to send a preliminary reference request to the European Court of Justice under Article 267 of the Treaty on the Functioning of the European Union since Article 50 TEU is a provision of EU law and by definition, only the CJEU can offer a binding interpretation of EU law for the entire EU.

In February 2018, the pursuer's application for judicial review (subject, in Scotland, to the Court of Session Act 1988, s. 27B) was refused by Lord Doherty in the Outer House of the Court of Session, on the basis that the question of the revocability or otherwise of an Article 50 TEU notification was a purely hypothetical and academic one, since both the UK Parliament and Her Majesty's Government had no yearning to resile from the path to Brexit (paras 10-14 of the judgment).  In particular, Lord Doherty opined that the pursuer's action had no reasonable prospect of success (para 8; see s 27B(2)(b) of the Act) since the matter was not a justiciable matter suitable for judicial determination.

The pursuers appealed the decision to refuse the judicial review and accompanying CJEU reference to a bench of three Scottish judges in the Inner House of the Court of Session by way of a reclaiming motion (which is the process whereby a decision of the Outer House of the Court of Session can be appealed). In their judgment, the panel of three judges heavily criticised the terms of the original judicial review pleadings as being overly complicated, unclear and potentially confusing and fell way below the standards expected for a judicial review application. (The clarity and structure expected in a judicial review claim were set out by Lord Hope in Somerville v The Scottish Ministers [2007] UKHL 44, at paras. 39, 46, 52 and 65. See also Lord Rodger's dicta at para. 88) Nevertheless, given the constitutional importance of the question raised, their lordships were minded to forgive such careless drafting and allow the appeal and remit the case to the Outer House for judgment (para 12). In the opinion of their lordships, the case was neither academic nor hypothetical given that the UK Government could be asked to revoke the Article 50 TEU notification at the request of the UK Parliament (para 30). But, even where the case were to proceed, the pursuers would need time to revisit and rephrase their averments (para 34).

Following a much amended set of pleadings, Lord Boyd of Duncansby heard the application for judicial review in June 2018. Lord Boyd refused the application and thus with it any chance of a preliminary reference request being submitted to the European Court of Justice (para 75). His Lordship's opinion hinged on the hypothetical and speculative nature of the claim. At the time of the judgment, the EU (Withdrawal) Act 2018 was still a bill progressing through Parliament and thus a definitive date for UK withdrawal from the European Union had not yet been set out as a matter of UK law. Rather, the date of exit of the UK was only set out as a matter of EU law as per the terms of Article 50(3) TEU, that is the date of entry into force of the withdrawal agreement or two years from the date of Article 50 notification itself.

As is well known, the European Court of Justice does not entertain national courts submitting hypothetical questions concerning EU law (see, for instance, Foglia v Novello). The preliminary ruling procedure is a practical cooperative link (for example, Case C‑470/12 Pohotovost) between the national courts of the member States and the Court of Justice of the EU, designed to help the national courts decide cases in which the interpretation of EU law is integral to the resolution of the dispute before the national court. (In the Scottish context, see the case of Scotch Whisky Association v Lord Advocate, discussed here) Having reviewed the authorities in this matter, Lord Boyd declared that the case was a hypothetical one which did not need to be answered in order for him to give judgment. He also stated that this position was synonymous with the position adopted by the Scottish courts as to hypothetical cases before them (for example, see Macnaughton v Macnaughton Trustees 1954 S.C. 312 as discussed by Lord Boyd at para. 48).

The petitioners, in their case, also objected to the stated position of UK Ministers that outlines that Article 50 TEU is not unilaterally revocable. Indeed, in the earlier seminal constitutional case of Miller,  the question of unilateral revocability of Article 50 TEU was assumed by both parties to be answered in the negative (para 10 of that judgment). Lord Boyd refused to entertain an in-depth discussion as to the legal appropriateness of the stated position of UK Ministers on the revocability of Article 50 TEU on the basis that were he to do so, this would be a usurpation of Parliamentary privilege and contrary to Article 9 of the Bill of Rights 1689 (paras 54-58 of his judgment). 

The pursuers then immediately appealed to the Inner House of the Court of Session, where their reclaiming motion was successful. The judgment of the Inner House was delivered on the 21st of September 2018. The Inner House found for the Reclaimers on a number of grounds. Lord Carloway, the Lord President, dismissed the UK Government's claim that the judicial review action was not competent because the order sought was not practical. On the contrary, Lord Carloway considered that the issue was justiciable precisely because there was such controversy as to the appropriate way forward within the parliamentary process (paras 22-23 of the judgment). More significantly, the court also found that the case was no longer hypothetical since in between the date of the judgment by Lord Boyd and the present case, the EU (Withdrawal) Act 2018 had now passed onto the statute books and certain provisions of that Act had come into force.

In particular, section 13 of the Act – the “meaningful vote” section – provides that the UK Parliament will be faced with a binary choice after a withdrawal agreement has been provisionally agreed between Her Majesty's Government and the European Union: Parliament must either approve the terms of the withdrawal agreement and accompanying text on the future framework for UK-EU relations or not approve. In the event that approval has not been forthcoming, the Government must inform the Parliament of how it intends to proceed within 21 days of the decision not to approve. Further, in the period up to the 21st of January 2019, if the Government again considers that no deal can be agreed then Parliament must be told of how the Government intends to proceed and again after the 21st of January 2019, the Government must inform Parliament of how it intends to proceed.

In all of these scenarios, there is a presupposition that both the Brexit clock inexorably continues to countdown to the 29th of March 2019 and that the choice for the UK Parliament is stark: Deal or No Deal. The Scottish politicians at the heart of this case contended that there is an alternative to this dystopian vision: The UK population can be given a People's Vote on the terms of the deal, including an option to Remain in the EU. However, this option will only be realisable if the UK's automatic exit from the EU on the 29th of March 2019 can be postponed and the only ways to disapply the automatic departure of the UK is by the UK either securing the agreement of the 27 other Member States to extend the Article 50 TEU time period or by unilateral rescission of the Article 50 TEU notification.  If neither of these options can be secured, then clearly, given that it is November 2018, there will be insufficient time to organise the necessary preparations for what would be in effect a second referendum on UK membership of the EU.

In the reclaiming motion, the Scottish judges approved the text of the question that they wished to send to the CJEU (see the Appendix to the judgment). The question is thus:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU.”

Given that time is of the utmost essence in this case, the Scottish court expressly requested use of the expedited procedure (see Article 105 of the Rules of Procedure of the CJEU) before the Luxembourg court. At present, the average time taken for the CJEU to deliver a ruling under the Article 267 TFEU procedure is 15.7 months (page 114 of the 2017 Annual Report of the CJEU) . Such a timeframe would, ironically, render the judgment academic since the UK is heading towards Brexit in just over four months.  However, even with the expedited procedure, the Court will in all likelihood take between 3 and 5 months to render a judgment. Even this timeframe is problematic given that, at the time of writing, the UK and the EU have agreed a provisional withdrawal agreement on the 13th of November 2018.

In order for the issue of the revocability of Article 50 TEU to have practical import, UK politicians would need to know the answer to this question before they are asked to perform their constitutional task of participating in a meaningful vote on the terms of the withdrawal agreement. Given that there is an agreement in principle in existence between the UK and EU, it is likely that UK MPs will be asked to vote on the terms of the deal before the Christmas parliamentary recess, a mere six weeks away.

The window of opportunity for the CJEU is exceedingly tight. It received the Scottish reference on the 3rd of October 2018. Sixteen days later, the President of the CJEU confirmed that, given the constitutional seriousness of the case, the case would be expedited. It will be heard on the 27th of November 2018.

The UK Government has formally objected to this preliminary ruling request on a number of fronts. Firstly, the UK Government has published a policy paper to the effect that the question from the Scottish court is still a hypothetical one and that the CJEU has overstepped its judicial role in effectively acquiescing in this subterfuge. These arguments can be dealt with cursorily. As a cooperative horizontal judicial process between national courts and the CJEU, it is for the national court alone to determine the appropriateness of sending an EU law question to the CJEU for adjudication. As such, it is a subjective task for the judges seised of the case before them to assess whether they require a resolution to an EU law question in order to enable them to make a decision (See for example, Case 126/80 Salonia).  Secondly, if that is the case, then the answer from the CJEU is not merely an advisory one, rather it is a sine qua non of the national judges preforming their constructive and practical constitutional role.

The UK Government's second approach to taking exception to this Scottish court reference was to challenge the process of requesting assistance from the CJEU itself. The Advocate General for Scotland alleged that the proper course for this issue should have been for the Court of Session to have appealed the case up to the UK's Supreme Court for adjudication rather than sending the case to Luxembourg. The Inner House of the Court of Session, on the 8th of November 2018 refused leave to appeal to the Supreme Court. The UK Government has not given up and has more recently submitted legal papers to try to get the Supreme Court to order cancellation of the reference request from the Court of Session. The Supreme Court has confirmed receipt of these legal papers and has assigned the case to Lady Hale, Lord Reed and Lord Hodge. It is to be expected that a ruling will be forthcoming from the Supreme Court given the Supreme Court's statement itself that it is aware of the urgency of the matter and the fact that the CJEU will hear the Wightman case on the 27th of November 2018.

Regardless of the relative merits or demerits of such an approach by the UK Government, these legal actions evidence a worryingly poor grasp of EU law principles. It is a well-established doctrine of EU law that the Article 267 TFEU Preliminary Ruling Procedure is not an appeal mechanism and as such national courts are free to submit requests to the Luxembourg court, free of any interference from higher national courts (See for example Cases 36 and 71/80 Irish Creamery Milk Suppliers Association v Ireland ECLI:EU:C:1981:62 and Case 338/85 Fratelli Pardini SpA v Ministero del Commercio con l'Estero ECLI:EU:C:1988:194).

Superior courts of the Member States are of course free to issue guidelines to the lower courts on when references should be sent to the CJEU (See for example the dicta of Sir Thomas Bingham MR in R. v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd Ex p. Else (1982) Ltd [1993] QB 534 and the case of Emerald Supplies Limited & Others v British Airways Plc [2017] EWHC 2420 (Ch)), and the CJEU itself issues guidelines on how to refer EU law questions to it, however, these guidelines cannot fetter the wide discretion afforded to national courts to make their own decision on the appropriateness of an Article 267 TFEU reference.  The lack of knowledge of basic underpinnings of EU law at the heart of the UK Government is either negligence writ large or an unashamed attempt to circumvent well established judicial lines of communication between national courts and the CJEU. Either way, it diminishes the reputation of UK Plc. and conversely enhances the standing and reputation of the Scottish courts and politicians.

Nevertheless, inexorably the Brexit clock lurches forward and it remains to be seen whether Scotland can Scotch Brexit for the evident utility of the entire United Kingdom.

*Update (23 Nov 2018): on 20 November 2018 the UK Supreme Court refused to give leave to appeal against the decision to refer, on the grounds that the Court of Session judgment was not final. The CJEU will therefore hold a hearing in this case as planned on 27 November. Also, you can find the full text of the written legal arguments of Mr Wightman and others before the CJEU here. 

Barnard & Peers: chapter 27

Photo credit: Scotcourts.gov.uk