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Is a Pledge of a Brexit Referendum within Six Months Credible?

The election on 12 December will require the political parties to set out their positions on Brexit. Already, Labour is pledging in its ‘Plan for Brexit’ that it will negotiate ‘a sensible deal within three months of being elected’. More dramatically, it also claims it will hold a further Brexit referendum within six months of the election ie sometime in May 2020.

On the first pledge to renegotiate a ‘deal’, this will focus on a new customs union, a close relationship with the Single Market and ‘guarantees of rights and protections’.

What is noteworthy is that these all relate not to the Withdrawal Agreement but to the future relationship which will be negotiated once the UK leaves the EU. These are the sorts of things that have been discussed in the context of the non-binding Political Declaration that will set the framework for those future negotiations.

The EU could be open to that discussion as long as it does not transgress the stipulation laid down in the latest Article 50 extension decision that the EU will not renegotiate the Withdrawal Agreement during the extension period. The problem for the Labour leadership, however, is that means being unable to reopen the Withdrawal Agreement during the period of the current extension.

We have been here before, however, and the second extension decision which kept the UK in the EU to 31 October also contained the same stipulation that the:

‘extension excludes any re-opening of the Withdrawal Agreement’.

Yet following a change in Government in the UK and Boris Johnson’s insistence that the text of the Agreement as it stood would not be passed by the UK House of Commons did lead to a revised agreement being reached during the period of the extension. Nonetheless, the EU might be more insistent on the non-negotiability of its second Withdrawal Agreement especially if it will be asked for a further extension to facilitate another Brexit referendum.

The second claim by Labour in its election pitch is that within six months of being elected it will hold a further referendum. This is more problematic.

As I have explained before, the barriers to a further referendum are numerous, but one of the most obvious ones is time itself. There will need to be time to legislate for a referendum; they don’t just happen. The referendum legislation for the 2016 referendum took seven months to pass. In a further referendum, the issue may be more complicated if moves are made to give voters a wider range of choices than between a Remain option and that of Leaving on a Labour-negotiated deal. Complaints that the referendum would not offer electors either a No Deal option or the choice to approve the Johnson vision of Brexit could both bog down the legislative process and raise issues as to the legitimacy of the referendum. At the limit, voters could be urged to boycott a referendum if it was considered to have rigged the available options.

The question to be put in the referendum would also need to be road-tested by the Electoral Commission. If there was agreement on the structure of the options to be presented to voters that could be done in parallel if the referendum bill also empowered ministers to insert or change the referendum question via statutory instrument. But if there is dispute over how to present the options, then the Electoral Commission might need to wait until a decision was finally taken before then turning to the specific wording of the question.

Even assuming all that could be expedited, far more challenging is the Electoral Commission’s previous best practice approach which anticipates that referendum legislation should be fully in place six month before it is implemented. Note this is before any referendum campaign gets underway. That would see a referendum then being held more than a year after a December 2019 election.

One reason why this six-month gap between completing the legislative process and its implementation might be particularly necessary would be if the franchise were to be extended to 16 and 17 year olds. Time would be needed to mount a registration campaign to ensure that this new group of electors were informed of their right to vote and duly registered. Back in 2016, the website for registration to vote in the EU referendum crashed forcing an extension to the deadline. In order to avoid a reoccurrence of the problem, the Government would need sufficient time for a public information campaign to highlight eligibility to vote and to maximise voter registration.

A request for a further extension to hold a referendum would clearly be necessary given that the current extension expires on 31 January 2020. Once again, the issue for the EU27 will be whether to grant such an extension and for how long. An extension for a further referendum would be difficult for the EU27 to decline. However, a key difficulty for the EU27 would be what might happen if the UK once again voted to leave the EU.

Even assuming that the UK would be in a position to hold a May 2020 referendum and to implement a result to leave the EU – for the sake of argument on 30 June 2020 – the UK and EU would jointly have to decide by 1 July 2020 whether to extend the transition period scheduled to expire on 31 December 2020. To do otherwise would be to leave the EU and UK less than six months to negotiate, agree and conclude agreements on their future relationship. Given the impossibility of that, the UK and EU would face a new No Deal Brexit deadline of 31 December 2020.

One view might be to offer an Article 50 extension to 30 June 2020 on the assumption that a Leave vote could be implemented smoothly and a transition extension also agreed. Others might, however, wonder whether another referendum might trigger yet more domestic politics that would make it less clear whether the UK could leave and enter into a transition period starting on 1 July.

But given what was said earlier, it simply does not seem likely that a UK referendum could occur that fast leaving the EU27 to decide whether to agree to a longer extension to the end of 2020 or even beyond into 2021. A fourth extension in those terms would, in effect render the transition period extension mechanism meaningless and the Withdrawal Agreement would need to be revised to reconsider how any transition period might actually work and on what timescale.

Labour’s Brexit pitch is clear and it is specific. But another referendum in six months stretches credibility.

 

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Extension Time, Election Time – But is it Brexit Time?

For the third time, and in agreement with the UK, the EU has granted the UK an extension to its EU membership. But this extension feels different for two reasons.

First, the extension offered by the EU was a response to a letter sent – but not signed – by the UK Prime Minister Boris Johnson acting in compliance with the so-called “Benn Act” passed by Parliament to prevent the UK leaving the EU on 31 October without a Withdrawal Agreement unless Parliament so decided. The statutory letter asked the EU to grant an extension to the Article 50 withdrawal process until 31 January 2020. Despite some debate about a shorter extension to maintain pressure on UK MPs to pass the European Union (Withdrawal Agreement( Bill introduced to give domestic legal effect to the revised Withdrawal Agreement – and so pave the way towards the UK’s exit from the EU – the European Council took the simpler option of agreeing to the 31 January deadline. The European Council’s decision finesses this by stating that if the respective ratification procedures are completed prior to this deadline then the Withdrawal Agreement will enter into force – and the UK will leave the EU – on the 1st of the following month. However that possibility is in effect rendered redundant by the second difference with this extension namely that it is less about facilitating approval of a Withdrawal Agreement and more about creating time for an early General Election.

Prime Minister Johnson tried – and failed – three times to secure the necessary two-thirds majority among MPs to hold an early election in terms of the Fixed-term Parliament Act. Unless an extension was agreed with the EU, and with the PM having the power to set the date of the election, MPs did not trust the Prime Minister not to use an election to engineer a “No Deal” Brexit. However, with an extension given by the EU and inspired by a proposal floated by the Scottish National Party and Liberal Democrats, the UK Government introduced the Early Parliamentary General Election Bill to obtain an election on 12 December. Crucially it would only take a majority of MPs for the Bill to pass, with the Bill going through all its stages in the Commons in one day.

The SNP/LD proposal – and the Labour amendment to the Bill – suggested that an early election take place on 9 December  meaning that Parliament would be dissolved on Friday 1 November. The Government’s preferred election date of 12 December would see Parliament dissolved on 6 November. The inclination of Opposition parties for the earlier date was designed largely to avoid the Government attempting to get its Withdrawal Agreement Bill passed by Parliament on an accelerated timescale before 6 November leading to a UK withdrawal from the EU on 1 December. Certainly, Opposition parties did not want Boris Johnson to fight an election having delivered Brexit. No doubt recognising that it would be difficult to get MPs to do what they previously refused to do, namely to back a programme motion to push the Withdrawal Agreement Bill through, the Government accepted that it would not be in a position to secure backing for its Withdrawal Agreement Bill. With the Article 50 extension also in place, the Government was able to resist attempts to bring forward the election and, provided there is not difficulty with the House of Lords, Parliament is set to make 12 December the date of the next UK General Election.

This will be the second early election called by a Conservative Prime Minister with a view to getting momentum behind their Brexit strategy. With a greater opinion poll lead than that currently enjoyed by Boris Johnson, Theresa May tried in 2017 to change the parliamentary arithmetic to ensure an easy passage of her Brexit policy through the Commons. Instead  her party lost its majority with all that entailed in terms of her inability to get approval for her Withdrawal Agreement  on multiple occasions and the influence the election result gave to the Democratic Unionist Party as her ‘confidence and supply’ partner.

The outgoing President of the European Council Donald Tusk tweeted that the adopted extension “may be the last one” with patience wearing thin with the UK’s continuing lack of clarity on its Brexit intentions. However, the outcome of a December election is no more certain that the situation in 2017.  A swing to the Lib Dems is simply not going to see them take office and fulfil their commitment to revoke the UK’s withdrawal notification if elected. Even a 10% swing would only increase their representation in the Commons by a dozen or so seats. For the Conservative Party, Boris Johnson’s strategy is predicated on his party taking vote share from the Brexit Party and winning seats from Labour. But Johnson faces the loss of seats in Scotland to the SNP as well as those marginals that the Lib Dems might pick up.

If Boris Johnson fails to win either a working majority or to be in a position to form a minority government then the Brexit impasse won’t be resolved by the election and the UK may find itself it no clearer position on Brexit. That could give EU leaders pause to consider whether the offer of a fourth extension is really desirable. However, if Labour is able to command a majority or to form a minority government then a further Brexit referendum would seem inevitable and would require the UK to seek a fourth extension.

The prospect of a fourth extension is not a happy one for either the UK or the EU. It would also need to be for a longer period of time than the third extension of three months. Even assuming that a referendum was put together quickly, it is hard to see this taking place before June 2020. All of which is awkward given that had the Withdrawal Agreement entered into force, the UK and the EU would have needed to adopt by the end of June a decision on whether to extend the “transition period” for one or two years. As I explain here,  is easy to forget that every single extension of the Article 50 process reduces the duration of the transition period and so limits the amount of time available for the EU and UK to do the really difficult work of negotiating an agreement on their future relationship. The prospect of an extension for a further referendum then begs the question of whether any transition period between exit and a new relationship has any real purpose. That may leave the EU with an uncomfortable choice between refusing a further extension – and so precipitating a No Deal Brexit – or offering a much longer extension to the UK’s membership with a view not only to facilitating a further referendum but potentially opening negotiations that would deal with withdrawal and the future relationship in one package, something which the EU has said it could not do.

Whether or not the UK leaves the EU on 1 February 2020 is largely dependent on the electoral performance of the Labour Party. Labour has been in Opposition for almost a decade. That period has seen the austerity policies of the Conservative-Liberal Democrat Coalition Government followed by the intensely divisive 2016 EU referendum of David Cameron’s Conservative Government. His Conservative successor Theresa May threw away her party’s parliamentary majority and ultimately failed to forge a political consensus on Brexit. The current incumber of No 10 has a certain charisma and is no doubt self-confident after the revision of the terms of the Irish Protocol. But he is not trusted by many and scandals about his personal life and business connections may yet tarnish him. The Windrush affair and the repercussions of the Grenfell Tower tragedy also hang over the Conservative Party. This ought to be an election that any credible major Opposition party should win.

On 13 December it should be clearer whether this is Boris Johnson’s or Jeremy Corbyn’s time of political triumph. But will it be Brexit Time?

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The Supreme Court as a Constitutional Court: Reflections on Cherry/Miller

In a unanimous single judgment, the eleven justices of the UK Supreme Court have ruled that the purported prorogation of Parliament for five weeks from 9 September to 14 October was unlawful because the advice of the Prime Minister to Her Majesty the Queen was unlawful.

The Supreme Court has declared that Parliament does not stand prorogued but it is for the authorities of the Houses of Parliament and Government and Opposition to decide what Parliament will now do. This is entirely consistent with what happened after the ruling of the Supreme Court in the first Miller case in which the Supreme Court held that the Government needed the authority of an Act of Parliament to trigger the Article 50 process for withdrawal from the European Union. The Supreme Court did not, and would not, instruct Parliament to legislate and it has not now instructed Parliament as to what it should do following today’s declaration.

There is much that can be – and will be – written about the judgment. It arose from distinct legal proceedings in the Scottish courts – in a petition for judicial review brought by Joanna Cherry MP QC and more than seventy parliamentarians supported by Jolyon Maugham QC who crowd-funded the case – and in the English courts – in an application for judicial review brought by Gina Miller. Whereas Ms Miller lost before the English Divisional Court, Ms Cherry succeeded before the Inner House of the Scottish Court of Session which held that the Government had acted unlawfully in using prorogation to “stymie” Parliament in the period leading up to the UK’s withdrawal from the EU. Appeals in both cases came before the Supreme Court.

But today’s judgment is much more than an apex appeal in two separate but linked judicial review cases. It is also a constitutional ruling of a court that clearly sees itself not just as a “supreme court’ but as the constitutional court of the United Kingdom with the responsibility to uphold and apply the constitution of the United Kingdom. It noted that:

Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. [para 39]

It continued:

… the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. [para 39]

There was always a risk in this case of a certain lack of fit between the constitutional nature of the underlying political struggle between the Executive and Parliament, and the legal tools available through which to frame the dispute in legal terms. The UK’s system of court-based public law has emerged through the rise of proceedings in judicial review which determines the limits of public power through the application of principles of administrative law. The tools and techniques of administrative law – and in particular the grounds of judicial review developed by the courts – are well-known to public lawyers. Decisions taken by public authorities must not entail procedural impropriety – failure to abide by mandated procedures; breaches of natural justice; bias – or illegality – acting ultra vires or for an improper purpose or by taking into account irrelevant considerations – or otherwise irrational or unreasonable. This is a flexible toolkit that can be applied to a wide range of decision-makers. The recognition of fundamental rights both at common law and more directly through the Human Rights Act has deepened the substantive review of the legality of decision-making and extended it beyond administrative action to the review of Acts of Parliament for their compatibility with fundamental rights.

In the proceedings before the Supreme Court, lawyers on all sides delved into this body of law to frame their claims about the lawfulness or otherwise of the actions of the Prime Minister. It seemed as if much might turn on whether the Prime Minister was seeking to use a recognised power to prorogue for an improper purpose or was otherwise motivated by improper concerns. Yet translating this from the administrative law realm – where a court might be asked to determine whether a statutory power was being used for a purpose other than that for which it was intended by Parliament – to the constitutional realm of the prerogative power to prorogue was not without its difficulties. Does prorogation have a proper purpose and what sort of evidential basis would be needed to determine if a use was improperly motivated? Would sworn affidavits from the Prime Minister and his officials be needed to work out what was in their minds when they sought a prorogation? The Supreme Court largely side-steps these problems by taking a more resolutely constitutional path.

At the heart of the judgment is the proposition that there are two key constitutional principles: the sovereignty of Parliament and parliamentary accountability of the Executive. Parliamentary sovereignty is typically reduced to the maxim that Parliament can make or unmake laws which it is the duty of the courts to interpret and apply. But as the Supreme Court also noted, the sovereignty of Parliament would be undermined ‘as the foundational principle of our constitution’ if a prerogative power to prorogue could be used to ‘prevent Parliament from exercising its legislative authority’; a point made forcibly by Professor Paul Craig in a highly influential blog on the eve of proceedings before the Supreme Court. As for parliamentary accountability, the Court equally viewed this as a cardinal constitutional principle that could be frustrated by an unduly long prorogation. All of which left the Court to ask:

So the same question arises as in relation to Parliamentary sovereignty: what is the legal limit upon the power to prorogue which makes it compatible with the ability of Parliament to carry out its constitutional functions? [para 48]

The Supreme Court formulated the relevant test to be applied in the following way:

a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course. [para 50]

By looking at the effects rather than the motive and by determining whether the effect is an interference with constitutional principles that lacks a reasonable justification, the Supreme Court deploys a test that is certainly analogous to situations where courts engage in interest-balancing. In other words, the Executive does have a legitimate interest in prorogation to start a new parliamentary session. Prorogation does have effects that include the cessation of normal parliamentary business and the loss of Bills in progress. The longer the prorogation the more serious the effect on Parliament’s interests in ensuring it can perform its constitutional functions. Accordingly, a longer prorogation than normal demands a higher level of justification and reason-giving. Therefore, without getting into any questions about motive or purpose the Supreme Court could state:

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful. [para 61]

The Court did not venture further in explicitly proposing a proportionality-based balancing of interests but it is still clear from the judgment that the greater the interference with the protected constitutional principles – and so increasing the seriousness of the effects on the capacity of Parliament to exercise its functions – the greater the justificatory demands. That feels like a constitutional style of adjudication.

Nonetheless, the cautious approach of judicial review may temper any potential constitutional overreach. Early on in the judgment, the Court identifies that it is the Prime Minister who has the constitutional responsibility to have regard to all relevant interests ‘including the interests of Parliament’ and so interest-balancing is first of all a matter for politics. However, it is clear that how that is done, and the justification provided for the effects on the interests of Parliament, is open to judicial review and is justiciable.  In the extreme case, it will be found to be unlawful.

Brexit is putting UK politics and its constitution under considerable strain. However, today’s ruling is an important signal than in a constitutional monarchy, the constitution sill matters and the Supreme Court is willing and able to play its role as a constitutional court.

NB: The author was part of the legal team advising the petitioners in the judicial review sought by Joanna Cherry MP QC and other parliamentarians. This blog is written in a purely personal capacity and does not purport to represent the views of the petitioners or the legal team. It is a wholly personal academic reflection on the implications of the Supreme Court’s ruling.

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Could a ‘No Deal’ Brexit Breach EU Law?

How much does EU law really have to say about the withdrawal of a Member State from the EU? This seems like an odd question given how much we know about the role played by Article 50 TEU. For example, we know that Article 50 gives the withdrawing state and the EU a two year window to negotiate a withdrawal agreement whose entry into force results in the EU treaties ceasing to apply to that state. By agreement of the withdrawing state and the remaining EU states, the period laid down in Article 50 can be extended. But once the Article 50 period comes to an end, the treaties shall cease to apply even if there is no withdrawal agreement. Viewed in this way, the departure of a Member State without a withdrawal agreement does not appear of itself to be contrary to EU law.

Nonetheless, the behaviour of the parties is subject to legal stipulations. Article 50 recognises that the decision to withdraw will be taken in accordance with the domestic constitutional requirements of the withdrawing state. What those requirements might be and how they are enforced are matters for the withdrawing state. The Millercase is a good example of UK courts determining what the constitutional requirements were for a UK Prime Minister to trigger the Article 50 withdrawal process.

Maintaining compliance with domestic constitutional requirements is not restricted to the decision to withdraw but necessarily applies to any exercise of executive power that impacts on the withdrawal process. This is clearly implied in the so-called ‘Three Knights Opinion’. While the legality of a No Deal Brexit arising from the acts or omissions of the UK Government is a matter of domestic law to be determined by UK courts, does that mean that EU law remains agnostic?

Whether or not EU law is or should be agnostic about domestic constitutionality has been an open question since the 2016 referendum. Various domestic court cases have sought to impugn the legality of the 2016 referendum and the withdrawal ‘decision’ with a view to claiming that the Article 50 notification was legally invalid and so ought not to be recognised and given effect in EU law. Nonetheless, in the absence of any court determination annulling the 2016 referendum result and instead – following the Miller case – an Act of Parliament authorising the Prime Minister to notify the EU of the UK’s decision to withdraw, there has simply been no plausible legal basis for the legality of the UK’s withdrawal to be called into question from an EU law perspective.

Things have now become a little more complicated for two reasons. The first is the Wightman ruling of the Court of Justice on the capacity of a Member State to revoke its EU withdrawal notification. The second are pending court cases in the UK to challenge the constitutionality and legality of steps that could be taken by the UK Government to engineer a No Deal Brexit.

In Wightman the Court of Justice was asked whether as a matter of EU law it was possible for a Member State to revoke its withdrawal notification prior to the treaties ceasing to have effect in terms of Article 50. The Court concluded that there was a unilateral right to revoke the Article 50 notification. But the Court said that the revocation had to be ‘unequivocal and unconditional’ with the purpose of confirming EU membership. The Court also stated that the notification of revocation followed from a decision taken by the Member State in accordance with its constitutional requirements.  As the Court put it:

 … if the notification of the intention to withdraw were to lead inevitably to the withdrawal of the Member State concerned from the European Union at the end of the period laid down in Article 50(3) TEU, that 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.

It would appear that it is not just the decision to withdraw but subsequent decisions concerning a state’s status as a Member State of the Union that are understood to be taken in accordance with domestic constitutional requirements. Again it is important to emphasise that what those requirements are remain matters of domestic law and the Court of Justice is not in a position to interpret domestic law let alone national constitutional provisions.

Nonetheless, were there to be a suggestion that a government or its Prime Minister was behaving unconstitutionally, the question would at least arise as to what legal effect such acts – or even omissions – should have as a matter of EU law.

This point is underscored when we think of the relationship between what the Court said about a revocation decision being taken in accordance with national constitutional requirements – a matter of domestic law – and the stipulation that a revocation decision had to ‘unequivocal and unconditional’ – a matter of EU law. Although the Court demands that a revocation is unequivocal and unconditional, there is really very little way of enforcing this demand. How would we know that a state was not serious about its revocation decision until after the event? Would the mere fact that a state once again triggered the Article 50 process automatically mean that its earlier decision to revoke was not unequivocal? What would the EU do about it?

Rather, what gives a revocation decision its unequivocal and unconditional character from an EU law perspective is that it derives from a decision taken through a democratic process in accordance with national constitutional requirements. There is a clear linkage between the legality of the decision from an EU perspective and the constitutional qualities of the decision from a domestic perspective. That would seem to be even more so in a situation where the rights of EU citizens derived from EU law – and which an orderly withdrawal seeks to protect – would be affected by a No Deal Brexit which the Court explicitly highlights in its Wightmanruling.

The issue of the constitutionality and legality of the behaviour of the UK Government in pursuing a No Deal Brexit is the subject of a judicial review petition before the Scottish Court of Session and is likely to be raised in proceedings in the English courts. It is first and foremost for the UK courts to determine the legality of a No Deal Brexit from a domestic legal perspective and to provide appropriate remedial protection. What is not clear is what capacity the Union might have to act in response to domestic court proceedings when faced with what could otherwise be a disorderly departure of the EU by the apparent operation of Article 50 itself. It is not obvious how the EU could stop the clock even if there were allegations that the UK Prime Minister was acting unconstitutionally if that issue could not be determined prior to 31 October 2019.

There is one other consideration, however, that should be noted. As was made clear at the outset, Article 50 does envisage that a state can leave the Union without a withdrawal agreement. But can a state choose to frustrate the objective of Article 50, namely to secure an orderly withdrawal? Again in Wightman, the Court of Justice was explicit about the objectives which Article 50 pursues:

Article 50 TEU pursues two objectives, namely, 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.

As I have argued elsewhere, the objective of an orderly withdrawal is a means of managing the externalities which this unilateral withdrawal from the Union creates for the remaining EU states: ‘Brexternalities’. It is also for this reason, that the Union has insisted – and the UK has accepted – that the Article 50 process is governed by the legal principle of ‘sincere cooperation’ as laid down in Article 4(3) TEU. The final paragraph of Article 4(3) TEU is especially relevant. It provides this:

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.

Given that in Wightman the Court explicitly states that an orderly withdrawal is an objective of the Union pursued by Article 50 TEU, action by a withdrawing state that deliberately frustrates that objective would be a breach of a EU law. It would be actionable by the European Commission using infringement proceedings (Article 258 TFEU) or by a Member State like Ireland (Article 259 TFEU).

To take an analogy from a different aspect of EU law – the obligation to implement directives in national law – the Court makes clear that although a state is not obliged to take any measure to implement before the expiry of the period laid down in the directive for its transposition into national law, the state is prohibited from taking any measure liable seriously to compromise its ability to transpose the directive correctly. In other words, the state can do nothing but what it cannot do is to frustrate an objective of EU law. In its Inter-Environnement Wallonie ruling, the Court noted that it was for national courts to determine whether the actions of the Member State were in fact a breach of the sincere cooperation duty. Accordingly, this issue of EU law could form part of domestic legal proceedings concerning the legality of actions taken by the UK Government to force through a No Deal Brexit.

The on-going significance of the duty of sincere cooperation is underlined in the binding European Council Decision granting the UK the extension to 31 October 2019. Para. 10 of the European Council Decision states:

‘… The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.’

Although aimed at the behaviour of the UK in respect of the ordinary workings of the EU, it serves to underline again the importance attached to the duty of sincere cooperation during the extended Article 50 period and which a deliberate No Deal policy would frustrate.

Whether or not these issues are litigated and with what effect remains to be seen. Commenting on Brexit, former Supreme Court judge Lord Sumption stated that the courts are not there to solve every political problem. To which he might have added that not all legal problems necessarily result in court action. Nonetheless, with litigation over a No Deal Brexit beginning to take shape, it is at least worth considering why a No Deal Brexit could be a breach of EU law itself.