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/.

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.