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Time for a Rethink – What Did We Learn From Today’s Opinion on Revoking an Article 50 Withdrawal Notification?

In an Opinion published today, Advocate General Campos Sánchez-Bordona has recommended to the Court of Justice of the EU that it finds that it is legally possible for a Member State to revoke its Article 50 withdrawal notification and that it may do so unilaterally.

The Advocate General emphasised the unilateral nature of the notification of an intention to withdraw from an international treaty. For him, this continues throughout the Article 50 process meaning that the ‘intention’ to withdraw can change and a Member State may exercise its sovereignty to revoke its intention to leave the EU up until the expiry of the two-year period following the original notification. In short, the UK has up until 29 March 2019 to notify the European Council if it wishes to change its mind and the agreement of the other Member States is not required.

However, the powers of a Member State to revoke a notified intention to leave the EU are not unconditional. Firstly, a notification must be in accordance with national constitutional requirements meaning that the domestic constitutional rules and procedures are a limit on the power of a government to indicate a change of position. Secondly, the principles of good faith and sincere cooperation are applicable to avoid an abuse of the right of revocation.

Today’s Opinion arose from judicial review proceedings brought earlier in the year before the Scottish courts seeking to determine whether EU law permits the UK to revoke its notified intention to leave the European Union. The case was initiated by members of the Scottish, UK and European parliaments and was initially rejected on the grounds that it appeared to raise a largely hypothetical question as the policy of the UK government is not to revoke the Prime Minister’s letter of 29 March 2017 notifying the European Council of the UK’s intention to leave the EU.

On appeal, the Inner House of the Court of Session was mindful that in terms of section 13 of the European Union (Withdrawal) Act 2018, members of the UK Parliament have an opportunity to vote on the Withdrawal Agreement and Political Declaration negotiated between the UK and the EU as part of the Article 50 withdrawal process. With a parliamentary debate on the Brexit deal beginning today and ending in the so-called ‘meaningful vote’ on 11 December, the argument before the Scottish court was that in order to make up their minds, MPs also needed to know whether there was a legal option to revoke the Article 50 notification. The Court of Session decided it needed a definitive legal interpretation of whether revocation was permissible under Article 50 and, if so, whether it could be undertaken unilaterally or only with the agreement of the EU27.

The UK Government has opposed the attempt to involve the Court of Justice and even sought to appeal the decision of the Court of Session to the UK Supreme Court. But with the Supreme Court refusing permission to appeal to it, proceedings got underway before the Court of Justice. The Court of Session had requested that the Court of Justice handle the case with urgency and today’s Opinion comes very rapidly after the oral hearing on 27thNovember. At that hearing, the UK Government continued to oppose the admissibility of the case on the grounds that it would draw the Court of Justice into a political issue. Although the European Commission also thought that the Court of Justice could be justified in refusing the admissibility of the case it did recognise the exceptional and constitutionally significant nature of the question being asked before the Court. However, on the substance of the case, both the European Commission and the European Council believed that a state could not revoke an Article 50 notification unilaterally but rather needed the unanimous consent of the other Member States. That view was rejected by the Advocate General in today’s Opinion. However, it will still be for the Court to come to its own decision on the admissibility of the legal question posed before it and if so, whether it agrees that revocation is unilateral. The answers provided by the Avocate General to these questions are consistent with my own views expressed in an earlier blog on Verfassungsblog.

On the one hand , given the timing of the meaningful vote a week today and the uncertainty which inevitably arises from a non-binding Advocate General’s Opinion, an early final judgment of the Court is highly desirable. However, this case is only the fifth case to go to a Full Court composed of all judges in its modern composition of more than 20 judges. Getting a quick ruling will depend on whether a consensus has emerged on the admissibility of the case and on the answers to be given to the questions posed to the Court. The Court may also wish to avoid what might look like an overtly political intervention in the febrile domestic politics of Brexit.

On the other hand, a judgment after the Commons vote on 11 December is not necessarily irrelevant given the likelihood that the vote will see the Prime Minister’s deal rejected making a second vote or even a referendum a distinct possibility.

Remainers are likely to seize on the Advocate General’s Opinion in seeking to propel the Brexit debate towards a further referendum to include an option for the UK to change its mind and remain in the EU. Leavers are perhaps more likely to see today’s events as an unwanted interference in a domestic political matter.

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Extending the Transition Period: 3 Options

Following her visit to the European Council meeting in Brussels, the Prime Minister Theresa May indicated that the UK might seek to extend the Brexit transition period ‘for a matter of months’. A recent European Policy Centre discussion paper has proposed a one-off mechanism to extend the transition period for a year. However, this week newspapers reported that the Cabinet had been warned that the UK could end up in a long-running transition following its departure from the EU. In a new Faculty of Law Research Paper,  I explore three options open to the UK to extend the transition period and conclude that creating an extended transition and implementation facility would allow transition to end early as new agreements between the UK and EU enter into force.

For some time now, both the United Kingdom and the European Union have been agreed that once the UK ceases to be a Member State of the EU on 29 March 2019, it will enter into a ‘stand-still’ period during which the UK will continue to be bound by its existing EU obligations (alternatives to this approach were explored in an earlier blog). The rationale behind this is to avoid a ‘cliff-edge’ departure which would otherwise see tariffs and regulatory controls imposed on cross-border trade between the UK and the EU.

To the extent there has been disagreement between the two sides it has been on terminology – the EU refers to this as a ‘transition period’ while the UK insists on calling it an ‘implementation period’ – and duration – the UK sought a two-year period whereas the EU was only willing to agree a transition that would end on 31 December 2020 (coinciding with the end of the current budgetary ‘multi-annual framework’). The UK agreed to the EU’s offer of a transitionending in December 2020.

However, the duration of the transition period has come back to the fore of the negotiations for two reasons.

The UK believes that the issue of how to avoid a hard border on the island of Ireland can only properly be resolved in the context of the negotiations on the future economic relationship. The UK had hoped that this might be negotiated in parallel with the withdrawal arrangements. However, the EU has insisted that it is only the framework for future cooperation that can be discussed in the context of the withdrawal negotiations meaning that the terms of a future economic relationship can only be agreed once the UK leaves. As long as the UK is in transition, the issue of frontier controls on the island of Ireland does not arise. But with the transitional period ending at the end of 2020, EU negotiators have insisted on the need for a ‘backstop’ to ensure that if transition ends without a deal on a future relationship that meets the commitments made in the 2017 Joint Report, a ‘hard border’ in Ireland will be avoided. It is the failure to reach agreement on a backstop which is making negotiators on both sides reconsider a time-limited transition period.

The second reason for revisiting the duration of the transition period is that the pace of negotiations thus far, coupled with deep disagreement over the UK Government’s ‘Chequers Plan’ for a new UK-EU relationship, suggest that the transition period as currently conceived will be too short to allow for negotiations on a future relationship to be concluded. Taken together with the backstop issue, minds have turned to whether it would be prudent to extend transition,

In a recent European Policy Centre paper, Tobias Lock and Fabian Zuleeg make a strong case for the extension of transition, suggesting that a one-time one-year option to extend transition would be a workable solution.

In a new Research Paper, I explore three potential models for an extended transition:

  • A one-off option to extend transition for a year following the end of the initial transition period (the Lock and Zuleeg model)
  • A rolling or open-ended transition with an exit mechanism
  • An extended transition and implementation facility.

The Research Paper suggests that while Lock and Zuleeg make a good case, their proposal still risks a ‘second cliff-edge’ at the end of an extended transitional period if there is no agreement on a future relationship. A one-year optional extension may not give negotiators sufficient time to reach an agreement and might not create sufficient confidence to avoid the need to negotiate a backstop.

The most obvious way to avoid a backstop would be to keep the UK in transition unless and until a new economic partnership between the UK and the EU was agreed (provided also that this met the commitments on the Irish border agreed in the 2017 Joint Report). However, a perpetual transition would be politically unacceptable, be difficult to manage in budgetary terms and would conflict with EU law. It would, therefore, need an exit mechanism. This could be modelled on Article 50 itself and allow either the UK or the EU to notify the other of their intention to end the transition period. After a defined period, the transition period would come to an end with or without a deal on a future relationship.

A compromise solution draws on the existing draft Agreement and would allow transition to end once new agreements on customs and trade, foreign, security and defence policy are agreed and became applicable. Unlike an open transition, this facility would have to have a defined endpoint and a proposed deadline of 31 December 2022 is suggested. This is beyond the next General Election which is scheduled for 5 May 2022. The aim would be to give negotiators the flexibility to agree new partnership arrangements but with incentives to reach agreements early to avoid the need to continue to use the transition and implementation facility. The UK and EU could depart transition well before the facility expired. This does not ‘solve’ the Irish border issue. The Withdrawal Agreement must contain commitments which have already been made to avoid a hard border. The pressure remains on the UK to define how a future relationship with the EU would meet those commitments. But by expanding the time available to continue negotiations, at least some of the current pressure on negotiators may be released. The alternative is that no deal is done on withdrawal and the UK departs the EU without a Withdrawal Agreement. In which case the issue of frontier controls comes quickly back onto the agenda. Extending transition in the hope of finding solutions may be the least worst outcome.