Categories
Uncategorized

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.

Categories
Uncategorized

“Shall” I Explain Why this Spectator Story is “Utter Bollocks”?

The editor of The Spectator, Fraser Nelson has been pushing on Twitter a story by Charles Day on the Spectator blog that there is a legal onus on the EU to “to do a Brexit deal”. The crux of the argument is the mandatory language used in Article 50 TEU which apparently places legal duties on the EU – but not the UK – to negotiate AND conclude “a deal”. In a (later deleted) tweet, Mr Nelson stated that:

The law is clear: the EU is obliged (by its own rules) to offer a deal that Parliament can accept says Charles Day.

I described this claim as “utter bollocks’ in a tweet which got rather a lot of attention. So I thought I should explain my objections. It won’t take long.

Mr Day’s position is this:

Let me be very clear: there is a binding legal obligation upon the EU to provide us with what the media call ‘a deal’. Not only shall they negotiate, but they shall “conclude” one.

This apparently derives from the wording of Article 50 TEU which states:

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

There is clearly a lot of mandatory language here about what the EU “shall” do once a state notifies the EU of its intention to withdraw.

However, the use of the word “shall” is simply demonstrative of the steps which the institutions “shall” follow in the negotiation and conclusion of an agreement. In this respect, Article 50 merely echoes Article 218 TFEU which sets out in a generic fashion the standard operating procedure to be following by the EU in negotiating international trade agreements. As a reminder, Article 218 TFEU states this:

2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3. The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team. 

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

The same mandatory language is used in the treaties but to do no more than establish the correct steps in the procedure to be followed by the institutions.

Now, would anyone seriously contend that this mandates the EU to do a trade deal with the U.S.A. rather than simply setting out what process to follow should a negotiation be initiated and an agreement be reached that would be capable of being approved and concluded by both sides?

Not only does Mr Day misunderstand the legal significance to be attached to this wording, Mr Nelson extrapolated further in his assertion that the legal obligation extended to the content of the deal insofar as it had to be acceptable to the UK Parliament. Following the logic and the analogy earlier, this would be equivalent to stating that the EU was under a legal obligation to do a trade deal with the U.S.A. that the US Congress would accept.

Politically, it is clearly inadvisable for the EU and the UK to negotiate a deal which – recognising that it has to be approved by both the European Parliament and the Westminster Parliament – they know could not command approval by those institutions. That is why on the EU side, negotiators have kept the European Parliament informed throughout the negotiations.

It would be quite wrong, however, for the EU to interfere in the UK’s constitutional system for parliamentary approval and therefore the responsibility for the negotiation of a deal acceptable to the UK Parliament necessarily has to be a responsibility of the UK Government.

Which is also why the EU has insisted that if the UK wants something different from the Withdrawal Agreement it negotiated with the EU, the UK has to demonstrate what it wants and that what it wants will obtain a majority in the Commons. It is not for the EU to second guess the UK Government or to interfere in the constitutional relationship between the Government and Parliament.

The blame-shifting for a No Deal Brexit is clearly well underway. But can we avoid the utter bollocks of pretending that EU law demands that the EU offers the UK what it wants, not least when three years on from the referendum, we still have very little idea what that might be? Shall we?

Kenneth Armstrong is Professor of European Law at the University of Cambridge and author of Brexit Time – Leaving the EU: Why, How and When?

Categories
Uncategorized

Extra Time – But for What?

The point of writing Brexit Time and this blog has been to show how time shapes Brexit. From the timing of the referendum and the triggering of Article 50 to the two-year window for negotiating an orderly withdrawal, time has been a factor at key moments in the Brexit process.

As we approach 29 March 2019 – the UK’s scheduled date of departure from the EU – the European Council has offered the UK extra time to facilitate an orderly exit from the EU.

If MPs approve the deal negotiated between the EU and the UK before 29 March, the EU27 have offered to extend the Article 50 negotiation period to 22 May to allow legislation to be passed in the UK to give legal effect to the Agreement in domestic law.

Even if MPs fail to approve a deal – either because an approval motion is proposed and defeated or because the UK Government delays a vote till after 29 March – European leaders have also offered the UK an extension till 12 April.

The choice of these dates is clearly to avoid getting the UK mixed up in elections to the European Parliament which neither sides wants. The extension till 22 May is less extra time that Theresa May requested in her letter to European Council President Donald Tusk. Despite knowing that the EU27 did not want an extension into the election period, Theresa May had requested a 30 June deadline. The offer from the European Council underlines the European Commission’s position that a longer extension would pose legal risks in the formation of the new Parliament. So although the EU27 have shown some flexibility it’s not at any price.

What is significant about the extension offer is that the original idea of a single deadline of 22 May conditional on MPs approving a deal has been significantly modified by the unconditional offer to extend to 12 April. This is intended to prevent a cliff-edge “No Deal” exit on 29 March. But this offer is also problematic.

Firstly, Parliament is scheduled to be in recess from 4-23 April. In Parliamentary terms this only gives one additional week for a “meaningful vote” to be presented to MPs.

Secondly, as things now stand “exit day” is defined in UK law as 29 March. An extension beyond that date in terms of Article 50 TEU would keep the UK in the EU as a matter of EU law but without domestic law giving continuing legal effect to membership. The European Union (Withdrawal) Act 2018 allows a Minister to change the exit date by regulation and this would need to be approved by Parliament before the 29 March deadline. If MPs have not approved a deal the exit date would be changed to the 12 April default. If by that extended date the Brexit deal has been approved a further regulation would need to change the exit date to the later 22 May deadline on the assumption that the EU27 would agreed to this extended deadline notwithstanding that the vote had not taken place “next week” (as stipulated in the Conclusions to the European Council meeting).

How things play out depends on a couple of key events next week.

On Monday the Commons is set to debate a motion triggered under the EU (Withdrawal) Act as a consequence of the Commons’ second rejection of the EU-UK Brexit deal. Although this is a technical motion on how the Government intends to proceed it is also an important moment for MPs to signal how they want the Brexit process to develop.

A cross-party Amendment has been proposed that changes the normal rule giving precedence to Government business so that on Wednesday 27 March MPs can move and debate motions other than a Government motion to approve a Brexit deal. The idea behind this is to give MPs control over Parliamentary business with a view to taking control over the process.

The second key event would be the Government again asking the Commons to approve the Brexit deal. The offer of an extended Brexit deadline assumes that vote will take place the week beginning 25 March although in theory it could be delayed to the week beginning 1 April.

Despite the Commons Speaker’s statement that the Government cannot put substantially the same proposition to the House as the motions previously rejected, the European Council’s formal approval and endorsement of the Brexit deal together with a proposal to lay a draft regulation extending Brexit deadline would likely pass the Bercow test and so allow yet another “meaningful vote” to progress. However following the Prime Minister’s ill-judged berating of the very MPs whose backing she needs it is far from obvious that the deal will be approved.

The EU has made clear it is open to making changes to the Political Declaration if there is a majority in the Commons for an alternative Brexit. There are cross-party moves to articulate what that might look like and if the amendment to Monday’s motion is passed m, the Commons could have the opportunity to come to a view.

But the issue of free movement of people could make consensus on a Common Market 2.0 vision of the future relationship hard to sell to MPs in Leave-voting constituencies.

In the absence of an alternative consensus and in the face of a No Deal Brexit the only option may be to admit failure and requests an Article 50 extension of much longer duration. An extension of a much longer length would suggest a fundamental change in domestic politics is needed to chart a way forward. That could be an early general election or a further referendum.

Politics takes place in time but it is also structured by time. Brexit Time is unrelenting. It is also unforgiving.

Categories
Uncategorized

The Cooper-Letwin Article 50 Extension Proposal – How Long For?

Arriving at a summit at Sharm El-Sheikh, the UK Prime Minister has confirmed that this week’s votes in the House of Commons will not include a vote to approve a revised Brexit deal. No ‘deal in the desert’ is set to emerge at this gathering of EU leaders. Instead the so-called ‘meaningful vote’ will likely take place on 12 March a matter of weeks before the United Kingdom’s scheduled departure from the European Union on 29 March 2019.

There may, however, be a vote of some significance if MPs vote on the plan promoted by Yvette Cooper and Oliver Letwin to seek an extension to the Article 50 withdrawal process, pushing back the date of the UK’s departure from the Union.

At the end of January, the House of Commons rejected Cooper’s original amendment that would have extended the Article 50 process to the end of the year. But as time has passed the likelihood of a need to request more time has grown.

With the exception of a ‘No Deal’ Brexit – which MPs rejected when they voted on the ‘Spelman amendment’ in January – any Brexit scenario is now going to need an extension of the Article 50 process.

If MPs had this week been presented with, and backed, a Brexit deal, the legislation to bring that deal into law in the UK – a 100-page European Union (Withdrawal Agreement) Bill – will take time to make its way through the legislative process. This sort of extension is what is sometimes described by the EU as a ‘technical extension’ and would be for a matter of months.

However, with the EU still waiting for clarity from the UK about what sort of deal could command a majority in the House of Commons, a more radical idea has been floatedof forgetting about a technical extension and instead pushing Brexit back to 2021. In essence this would mean abandoning a 2019 Brexit with a transition period to 2020 or 2021 during which a new EU-UK relationship would be worked out.  Instead the UK would remain a Member State while it decided what it really wanted by way of a future relationship with the EU.

A delayed Brexit of this length would avoid the problems of a shorter extension running into the May 2019 elections to the European Parliament. Remaining a Member State would mean that the UK would have to return MEPs in this year’s election notwithstanding that the number of MEPs allocated to the UK have already been redistributed to the other Member States.

Nonetheless, it would also beg the question whether the EU – contrary to the position it has consistently taken – would actually be prepared to negotiate the text of a future relationship without the UK having become a so-called ‘third country’. The key advantage of having a negotiated deal in place at the moment that the UK left the EU would be that it could avoid the need to have an ‘Irish backstop’ as an insurance policy while negotiations on a future deal that would also avoid a hard border were on-going.

While one can see the advantages of a delayed Brexit, it would have profound domestic political consequences.

It would accept that the May Government had failed to produce a plan for the future capable of obtaining a consensus or even a majority within the Commons. If the Prime Minister cannot get a deal over the line with a technical extension to implement it, it’s difficult to see how either she or her government could carry on. Indeed, one might even consider that an extension of Brexit to 2021 would be a pretext for an early election to allow a new government to seek to build a consensus on a different way forward. In that way, it would be a proposal that would play to the Labour leadership’s preference for a general election as a way of unblocking the Brexit deadlock.

Delaying Brexit would create a significant rift in the Conservative Party between those who don’t want any delay to Brexit even if that means a No Deal Brexit, and those who want a softer Brexit or even for the UK to remain in the EU. It would also be a significant boost to Nigel Farage and his Brexit party who would claim that Brexit was being frustrated, creating futher tensions within the other main parties.

For those who want the UK to remain in the EU, the longer the UK remains a Member State, the greater the potential to build momentum around a new referendum and a Remain vote.

It is readily apparent, therefore, that a lengthy extension to UK membership of the EU wouldn’t merely create an opportunity to define a vision of a UK future outside of the EU, it would fundamentally reconfigure the domestic politics of Brexit.

More immediately, this all presents a very important choice for a new Cooper-Letwin Article 50 extension proposal.

Any extension needs the consent of the EU27. If the EU has come to the conclusion that an extension is EITHER a short-term technical extension OR a more lengthy delay to Brexit, then the Cooper-Letwin proposal would need to choose between these options.

If they go for a short extension it would be tantamount to accepting that Brexit will be a variant of the current negotiated texts with a risk that a No Deal Brexit could still happen if MPs refuse to back the deal.

If they go for a longer extension, it would recognise that only a No Deal Brexit had been largely taken off the table with a No Brexit option remaining in play as well as a potential change of government.

Whie the Prime Minister could have lived with an amendment giving a technical extension, an amendment that would significantly delay Brexit would be difficult for the Government to support even tacitly.  It would also be difficult for the Labour leadership not least because of the intense pressure on Jeremy Corbyn following this week’s spate of MP’s resignations from the party. The Labour Party may say it wants a general election but it is not obvious it would win given the internal divisions within the party over Jeremy Corbyn’s leadership.

Once again, issues of time profoundly shape what sort of Brexit – if any – will result. The fate of the Cooper-Letwin initiative may well depend on how much time they think is needed for an Article 50 extension.

There may be no deal in the desert but the sands of time continue to trickle for the UK and the EU.