Putting the Bullet Back in the Chamber -Could Parliament Exit from Brexit?

The Wightman judgment from the Court of Justice of the European Union holding that a Member State may unilaterally revoke its notified intention to withdraw from the EU prior to that withdrawal taking effect has largely fallen foul of a Brexit news cycle in which each new twist and turn supersedes the last. Indeed the UK Prime Minister’s decision to postpone a House of Commons vote to approve the Withdrawal Agreement and Political Declaration negotiated between the UK and the EU almost entirely overshadowed the Court’s ruling.With the substance of the ruling more or less following last week’s Opinion from the Court’s Advocate General, the impact of the judgment is also somewhat reduced. However, the judgment contains significant messages for political and legal audiences.

To the political audience there is one enormous political message and it is not so much a message about withdrawal as it is about membership.

The Court is clearly signalling that membership of the European Union, and the rights and responsibilities which come with it, is voluntary. States exercise their sovereignty to choose to join the European Union and the Court emphasises that when states join the EU using the Article 49 TEU process they ‘freely and voluntary’ commit themselves to the values underpinning the EU. The discipline of EU membership – including acceptance of the primacy and direct effect of EU law – is something which states can accept voluntarily by joining, or reject voluntarily by leaving the EU. If a state decides to change its mind and not to leave but to remain a Member State, it must be free to do so voluntarily and can neither be coerced into leaving or be authorized to remain by the other Member States.

In short, the Union is a voluntary association of sovereign and equal Member States. As political messages go, that is a pretty big message.

That big message also comes with a more specific message for the UK. If the UK were to decide to remain in the EU it would do so ‘under terms that are unchanged as regards its status as a Member State’. Given that the UK’s membership of the EU entails a range of opt-outs, these would not be up for renegotiation as a condition of remaining an EU Member State.

In other words, the status quo of remaining in the EU would be the status quo of the UK’s current terms of membership.

Aside from these important political message, the judgment also has something for EU lawyers and UK constitutional lawyers.

For EU lawyers, the decision is of significance not least in resolving a legal question that had been much debated in blogs and in journal articles (some of which are summarised in my earlier blog on this case). Despite well expressed reservations in some quarters that unilateral revocation might be used to game a withdrawal process or might otherwise risk moral hazards or abuse, the Court has come down on the side of a contextual and historical interpretation of Article 50 TEU that emphasises the voluntary nature of the withdrawal process. Accordingly, unless and until a withdrawal agreement enters into force or the two-year withdrawal period – or an extended period – expires, a Member State remains free to change its mind and notify the European Council (in writing) of its ‘unequivocal and unconditional’ intention to remain a Member State of the EU.

The ruling is also of interest to EU lawyers because of the willingness of the Court not only to deal with the case on an expedited basis – the ruling comes barely more than two months from the request of the Scottish Court of Session for a preliminary ruling from the Court – but also because of the rejection of the UK Government’s position that the referral was inadmissible. The Court was unwilling to accept that the presumption of the relevance of the question posed by the national court had been rebutted. Interestingly, once the Inner House of the Court of Session had determined that the case was admissible under domestic rules governing an application for judicial review and had rejected claims that a referral was inadmissible on grounds of being hypothetical or academic in nature, the Court of Justice appeared to be content with those assessments. In particular, the Court did not accept that there was no real dispute between the parties unlike other cases where the parties have essentially contrived litigation in order to obtain an interpretation of EU law from the Court. That said, the essential dispute between the parliamentarians and the UK government was on the need for a reference to the Court of Justice: it is hard to see what other substantive dispute there was between the parties.

For UK constitutional lawyers, the Wightman ruling is also of some significance. While the UK Supreme Court in Miller had proceeded on the assumption that an Article 50 TEU notice could not be revoked we now know that this is not the position under EU law and no doubt some will speculate whether the clarification of the legal position would have led to a different result (for the reasons given by Jack Williams it is unlikely that the Supreme Court would have decided differently). However, the point remains that there are domestic constitutional requirements which must be met in order for the UK to leave the EU and as the Court of Justice tells us, these are also applicable to revocation of a notice of intention to withdraw from the EU. Indeed, the Court’s safeguard against an abusive withdrawal of a notified intention to leave the EU is that a change of mind is subject to domestic decision-making procedures. Thus, any decision not to withdraw from the EU must – by analogy with the decision to withdraw in terms of Article 50(1) TEU – be in accordance with domestic constitutional requirements.

The Court of Justice has muddied the waters somewhat, however, by referring not just to the notification of an intention to revoke in accordance with domestic constitutional requirements but also to the Member State’s decision ‘to revoke the notification of that intention through a democratic process’. Two issues arise. Is the need for a ‘democratic process’ an additional EU law requirement, and what would an acceptable democratic process look like?

One way in which the Court departs from its Advocate General is that the Court does not demand that the notification of revocation meet EU requirements of good faith and sincere cooperation. In that light the reference to the democratic process could be viewed as a more concrete procedural demand of EU law intended to prevent an abusive exercise of the right to revoke at the whim of the executive. However, the better view is that decisions to withdraw from the EU or stay a Member State remain sovereign matters for the Member States themselves and the domestic constitutional and democratic procedures mandated by the laws of the Member States. The EU law requirement is instead for the revocation to be ‘unequivocal and unconditional’ – that the revocation is the result of a constitutional and democratic process is the domestic means of achieving that outcome. It is not for the EU to mandate what those constitutional and democratic requirements ought to be, but it is for the EU to verify that the outcome achieves its need for a decision that is unequivocal and unconditional.

All of which leaves open the question of what democratic requirements might be required by UK law. As we saw with the original Article 50 withdrawal notification, it may not be entirely apparent what rules UK law imposes. Phillipson and Young contend that an Act of Parliament would be required given that the will of Parliament – expressed in the European Union (Notification of Withdrawal) Act 2017 and the European Union (Withdrawal) Act 2018 providing for the UK’s departure from the EU – would be frustrated by a revocation of the UK’s Article 50 notice. A referendum prior to that decision would not be required although it could be undertaken if the UK so chose. But whether a referendum occurs or not is being driven by the somewhat chaotic domestic politics of Brexit rather than being a product of the Court’s Wightman ruling. Indeed one way of reading the judgment is that the best way of securing an unconditional and unequivocal decision to revoke the notified intention to withdraw from the EU is for the UK Parliament to legislate accordingly.

If the political message of the Wightman ruling is that the EU is a union of sovereign states, then the legal message is that it is up to the sovereign UK Parliament to decide whether the UK leaves the EU or remains a Member State. But as the Prime Minister’s decision to postpone a vote on her deal reveals, it is not obvious that there is any consensus within Parliament to move one way or another. The Court of Justice has left open the possibility for the Brexit bullet to be returned to the chamber. It is not obvious that the Chamber of the House of Commons knows whether it wants the bullet back.

An earlier version of this post appeared as Sovereign Choices: The CJEU’s Ruling on Exit from Brexit, VerfBlog, 2018/12/10, https://verfassungsblog.de/sovereign-choices-the-cjeus-ruling-on-exit-from-brexit/.

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