Brexit: the important role of the Court of Justice

It attracted surprisingly little press attention but, in a speech of late last week, Donald Tusk offered up a tantalising possibility. Negotiations might take place between the UK and the EU. And when they had concluded, we could choose between the outcome of those negotiations (which he said would be a ‘Hard Brexit’) and the status quo of our remaining in the EU.

Tusk was gently floating a political possibility. He didn’t address the underlying legal question – one of construction of European law – which is whether, having made a notification under Article 50, we can later and unilaterally reverse it.

But it is no exaggeration to say that the legal question is of enormous political importance.

If the answer is ‘no’, the triggering of Article 50 will commit us to leaving the EU. The effective consequence of the answer being ‘yes’, on the other hand, may be to compel the Government to offer Parliament or the electorate at large a vote on the terms of the deal. Parliament may require a second mandate as the price of passing an Act to trigger Article 50 – or passing the Government’s proposed ‘Great’ Repeal Act. Even if Parliament does not, should during the course of negotiations the popular mood turn against Brexit (likely if economic conditions continue to deteriorate) the public may demand it.

What makes this question especially topical is that the same legal question as is embedded in Tusk’s political offer also lurks just below the surface of the Article 50 litigation that is presently taking place in the High Court.

The Claimants’ case – that triggering Article 50 can only be done by Act of Parliament – rests upon a contention that removing rights from individuals cannot be done by the Executive. It is something only Parliament can do. But if Article 50 is reversible, the central assertion in the Claimants’ case may not arise. If Article 50 is reversible we can’t know that the consequence of Theresa May triggering Article 50 will be to remove those rights.

Until Friday, this legal question looked likely to remain below the surface.

For political reasons – as I predicted back in June – the Government was loathe to argue that Article 50, once triggered, could nevertheless be reversed. Arguing this would leave our membership of the EU an open book and infect the remainder of the Conservatives’ term in office. The reversibility of the Article 50 case suited the Claimants too. As I have explained above, their legal case that only Parliament could trigger Article 50 is weakened (perhaps fatally) if Article 50 is reversible.

So it seemed as though the question might pass unresolved.

But on Thursday the High Court upset this expedient consensus. The Lord Chief Justice indicated he was not prepared to proceed on a mutual assumption that Article 50 was irreversible. He wanted to decide the point.

So what happens now?

(I should say for the record that, although I was the original client for the purposes of obtaining advice and writing to the Government, for legal reasons I now have only a limited and informal involvement in what became the so-called People’s Challenge. Specifically I do not know what it intends to submit.)

What we know is that, before the litigation, Government considered the matter carefully and decided not to assert that Article 50 can be reversed. It seems to me very unlikely that the Government will now form a different view. I expect that it will decide to keep its powder dry and perhaps take the point in the Supreme Court if it loses in the High Court. It will want to hedge its bets.

The Lead Claimant – Gina Miller, represented by David Pannick QC – has advanced what she coyly describes as an “assertion of law” that Article 50 is irreversible. This, too, is a form of bet-hedging to see what the other side does. Only if the Government asserts that Article 50 can be reversed will Lord Pannick feel compelled to move beyond assertion.

Counsel for the People’s Challenge – Helen Mountfield QC – had sought to invite the High Court to proceed on an assumption that it is irreversible. She came – and will come again tomorrow – under pressure to firm up her position. But what is clear (to me at least) is that she cannot be forced to advance submissions in relation to a point that is not in issue. I expect her to adopt David’s Pannick QC’s formulation.

So where does this leave the High Court – which obviously does consider that it needs to decide the question?

You won’t have noticed but I observed (above) that the question whether an Article 50 notification is reversible is a question of European law. And that has a striking consequence. Our courts may need to refer the matter to the Court of Justice of the European Union.

If it is (1) necessary for our courts to decide on the reversibility of Article 50 to answer the question before it (on whether Theresa May can trigger Article 50) and (2) the matter is not clear beyond sensible doubt, then the High Court may (indeed, the Supreme Court must) refer the matter to the Court of Justice of the European Union for an answer.

It cannot reasonably be suggested that the matter is clear beyond sensible doubt. And the High Court plainly seems to consider the matter highly relevant (although it is not yet clear that it is ‘necessary’). So a reference by the High Court must be a real live possibility (although it may be reasonable to expect a reference from the Supreme Court rather than the High Court).

Such a reference would have some important consequences.

First, there would be a very real delay in the determination of the Article 50 claim. The Rules of Procedure of the Court of Justice do contain provision for the President of the Court to direct an expedited procedure. But even were he to do so, it might be reasonable to expect (taking this as an example) a delay of three months. There would then need to be a further hearing before the High Court or Supreme Court to determine the outcome of the Article 50 claim once the Court of Justice had ruled. Theresa May’s deadline for triggering Article 50 of March 2017 would inevitably be breached.

Second, there will be some media excitement. Imagine the delight of our Fourth Estate at the prospect of the Court of Justice playing a part in determining the mechanics of our decision to leave the European Union.

Each of these consequences will be viewed with some caution by the parties to the Article 50 litigation. But, if the High Court or Supreme Court is determined to decide the question of the reversibility of the notification we must prepare ourselves for them.

Standing back from all of this, and although I can certainly see the downsides to a reference to Luxembourg, there is an important upside too.

Each of Parliament, the Government, and the public too needs to understand the consequences of notifying under Article 50. If it is irreversible, the public should understand before notification that there can be no second referendum or Parliamentary mandate for the Brexit deal. If, on the other hand, it is reversible, Parliament and the Government should acknowledge the consequence of the lack of clarity as to what the Referendum mandate meant. That consequence is a need for a fresh mandate from Parliament or the electorate on the terms of the negotiated deal.

48 thoughts on “Brexit: the important role of the Court of Justice

  1. Surely as a practical matter there will be no time for a second referendum, or even a proper Parliamentary debate, between finalising a deal and leaving the EU, unless the EU27 agree unanimously to extend the deadline to permit it. The deal will inevitably not be finalised until hours before the deadline, as is always the case for negotiations of this kind, where only the existence of a hard deadline gets anything agreed at all.

  2. Article 50(2) has, in my opinion, already been triggered. Where does it say the notification has to be made in writing? Notification happened when David Cameron attended a meeting of the European Council on 28 June 2016 and informed the Council about the outcome of the referendum in the UK (see the conclusions of EUCO 26/16). From reading the Government’s skeleton argument, the decision to leave the EU had already been made on 23 June 2016, by the electorate in the statutory referendum. That decision has been articulated in the referendum result, which the Government says it intends simply to give effect to.

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  4. I’m ever one for the simplest solution.
    EU referendum has delivered no sort of result whatever. Advice was sought & got:
    It has to be for Parliament to weigh-up that advice.
    This re-assertion of our existing Democratic system: Liberal(Representative)Democracy/Parliamentary Democracy which holds that Parliament is the supreme authority. Has the added benefit of removing the taint of impropriety from the EU Referendum process:
    -What emerged on the 24th of June bore little resemblance of what was there up to 10pm on the 23rd.
    -No sort of manifesto was presented by the Leave Campaign.
    -No mere assertion of Government alters the fact of the referendum’s advisory nature.

    It is better for Parliament to assert itself than have the nigh-criminal admixing of Direct Democracy:with its usual provisos absent & the adversarial nature of our more usual FPTP electoral niceties – sans manifesto, sans regular do-over;the election cycle, engraved into our national history.

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  6. Michael: politically you may be right but legally I cannot see how the announcement of the result of an advisory referendum can be taken to be the triggering of Article 50 when only the government can do that (whether with or without the authorisation of parliament as discussed in the original post). The government so far has only said that it intends to.

  7. So far as I am aware, Cameron simply informed the EC of the result of the referendum, i.e..52% voted Leave, 48% Remain. That can hardly be considered to be service of a “decision” under Article 50.

  8. A decision by the ECJ will clearly be a double-edged sword. If Irreversible – the Claimants case is strengthened. If Article 50 were still then served, there is no ‘second chance’ as Tusk has suggested. It is either IN or OUT. That should focus the minds of the Government and MP’s.

    If reversible, – in principle – the Claimants case is weakened,; but still has merit, as any reversal would require unanimous agreement by the 27 and there is no guarantee that it will be reversed. How the Government might deal with the latter judgment by the ECJ is a matter so complex that I am unable to sensibly assess the myriad options. Perhaps others can enlarge on that.

  9. There’s a nasty paradox if A50 is reversible: at what point could anyone say that a final decision to leave has been made? At any point before the 2-year deadline the government could maintain that no final decision has been made, since it could reverse the A50 notification later. Then after 2 years expires we leave. So when is the decision? And how could anyone try to contest the authorisation of a decision that can’t ever be pinned down to any particular time or act?

  10. Article 50 does say it is irreversible ifself. Any member state decide to change its mind will have to wait for 2 years notice and will have to rejoin using article 49.

  11. @Michael the referendum was non-binding so article 50 cannot already have been triggered. Regardless of this case there is no way negotiations can be complete before the deadline. Our membership will continue on a tempoary basis probably forever.

  12. The wording of Article 50 is imperative – “The Treaties shall cease to apply … two years after the notification … unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”

    There is no express provision for withdrawing a notification.

    That said, I doubt there would be any EU political barrier to the UK withdrawing a notification if it so wished.

  13. If there were a way out after triggering A50 it would result in an EU Treaty change to dump A50. Otherwise we’d be in/out/in/out perhaps every five years.
    The first time would be the test.
    Best by far to regain the will to go all-in with the EU. For the test-case would be the hardest of hard Brexits:
    ‘Uncertainty’ Is the thing to be avoided at any cost:QED Remain.

  14. @Richard No one thinks Article 50 can’t be reversed if there’s unanimous consent. If all else fails, the negotiation deadline could simply be extended to the year 3000, which the Treaty explicitly allows. The question under consideration is whether the UK can unilaterally withdraw a notification once it has been made.

  15. I would have thought that the fact that triggering Art 50 COULD lead to brexit, thereby removing rights, should be enough to require a prior parliamentary vote. Once triggered, the government can simply wait for the two year deadline to expire (without negotiating in good faith ) and the UK would then be automatically out. The government’s actions would remove rights without parliamentary approval.
    Richard Corbett

  16. Yep. A good point…

  17. logically if the Government knew that it wished to leave the EU it was obliged to trigger art 50 – since the government has not triggered art 50 it does not yet wish to leave the EU – yet why is it saying it does? Hmmmmmm

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  19. @Richard The current legal case asserts that it requires an Act of Parliament to trigger Article 50, not merely a Parliamentary vote. I believe that getting an Act passed is a much bigger deal.

  20. As I understand matters, our Parliament could repeal the European Communities Act 1972 which is the king pin of the whole thing. Take that out and we are free to retain or repeal any EU originated directive passed into law.

    I have seen argument that because of our international treaties, this would not be constitutionally possible. Apparently, any treaty is only binding upon the UK if it becomes and act of parliament. Perhaps more to the point, there is a precedent. After the fall of/Communism, the USSR became the Russian Federation, a similar structure to the EU with leaving clauses etc.

    When Latvia et al became independent states, they repealed the appropriate legislation and effectively told the Russians that they were off and had cancelled the standing order. There was nothing the Russians could do. What on earth prompted them to join the ghastly EU is of course another matter. They are probably regretting it, discovering it is the USSR in clothes that actually fit.

  21. Many people have commented in other fora that the government will notify the European Council of it intention to leave. The authors of these comments generally take the view that the notification of an intention to follow a particular path is not a legally enforceable action. Consequently an intention undertake an action can be withdrawn,. In this case at any point in the two year period or indeed a longer period if there is a 27-0 vote in the Council to prolong the discussions of the UK’s intention.

    Any comment?

  22. Richard Herd:Serial withdrawal is the danger – to be resisted. There is no requirement to use any of the 2 year period:We could be out of the EU in an afternoon.

  23. @Michael Since Donald Tusk has no authority to make such a ruling, what could be clearer is a ruling from the ECJ, who do have such authority.

  24. As there is only silence upon the issue of a way back from A50 & as any action on A50 shall be novel:It is preposterous;politically, legally & anti-commonsensical to proceed as if there may be a way back.
    For all the cosy togetherness of the EU ideal:None can play pluck-the-petal with Membership.

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  27. If the notification under article 50 is irreversible, does it perhaps mean that it could never be invoked, even by Parliament, given that Parliament cannot bind future Parliaments?

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  29. My understanding is that the article 50 notification must be constitutionally valid.
    If reversible then government can issue.
    If irreversible then must be issued with parliamentary approval. As constitutionally the executive cannot go against laws passed by parliament.

    If government issues article 50 notification and it turns out to be irreversible then it can be challenged as invalid at the European level.

    If reversible then parliament will need to ratify whatever deal is negotiated.
    If my reasoning is valid then parliament should make the final call either way.

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  31. If Article 50 is reversible, it is pointless. If it is not, then parliament must approve it, which also makes it pointless when we could simply repeal the European communities Act 1972 and be done with the whole toxic thing.

    There are precedents. Upon the fall of the USSR, the new Russian Federation had a similar customs union with negotiated exit clauses. Those that did not wish to be part of the federation simply repealed the legislation and walked away the same afternoon after having cancelled the direct debit.

    We are being drip fed scare and disaster stories which have already hammered the pound. Far better get out now and let the EU deal with its big motor industries and farmers who sell huge amounts into the UK. They will not be pleased at duties being imposed, especially the farmers because they will be very high indeed.

  32. Stop deluding yourselves. It is obvious, from the EU point of view, that article 50 triggering is irreversible. That is the spirit of the Treaty. Otherwise, any country that wishes some kind of “better deal” triggers an article 50, tries to renegociate, and may give up if it does not get what they want. It would become a deadly spiral. That is clearly not what was intended by the Treaty.

  33. If I’m deluding myself, I’m in good company. So is Donald Tusk. But I’m sure you know better.

  34. There is a cusp between European law which will apply to the EU i its negotiations with the United Kingdom, and the law of international treaties which enables the United Kingdom to deploy its reserved competence. The issues are well explained in the article of Aurel Sari at to which you have previously referred your readers on Twitter.

    Have you changed your approach, or was that simply a reference?

    There is a danger in becoming obsessed with the TEU as being the only source of law, when it is not the only one and has been engineered with that reserved competence cusp in International Treaty law mind. In fact, should not the United Kingdom shed any undue and unrequired reference to the TEU contrary to its interest as binding its negotiating position in this area if it is to maintain a healthy negotiating posture; should it come to that? I am speaking strategically, without putting my own feelings forward.

    Technically, what will be of interest will be the directly effective and applicable issues which will arise inevitably from the Bexit Instrument if there is to be one.

    Firstly, if so, the CJEU will have reference powers over those; and there may be a need for any UK legislation to give a form of effect to them to UK citizens and undertakings, if to their EU equivalents. There will be a need for some adaptation or evolution of ss. 2 & 3 etc ECA 1972. The Brexit Treaty would be an EU Treaty, by definition.

  35. The reactions that I am getting from European colleagues is that they have no idea at all of the basic principles of International Treaty law to which Aurel Sari rightly refers or their inherent relevance to the re-drafting of the EC Treaty into the TEU, and appear to fall into the same entrammelled assumptions as Daguix.
    The rule of law implies that is is known and understood, and not negotiated by reference to prejudice, as opposed to a référence préjudiciel!e.

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  37. Is an Art. 50 notification unilaterally revocable? Some commentators have argued that it may be revocable under international treaty law. But if it is revocable who would have the power to revoke it?

    If the executive could decide to withdraw from the EU and invoke Art. 50 by notification then, if the executive could also revoke this decision, the loss of EU and UK rights by executive fiat which the claimants want to resist would still be a loss of rights without a UK statutory basis because it would be at the executive’s discretion as to whether to revoke the notification. The problem of the executive changing the law of the land by “proclamation” and/or “suspending” laws would remain, and would in a sense be “doubled” because the executive would be able to both change the law and un-change it by ministerial fiat without any UK statutory basis.

    Another view could be that Parliament could revoke the decision/notification given by the executive. But this is also problematic because it would give the executive the power to, in effect, force Parliament to re-validate its own Acts, some of which are worded in absolutist terms that can only mean the law is intended to stand indefinitely unless changed by Parliament (e.g. “There shall be 72 members of the European Parliament (“MEPs”) elected for the United Kingdom” – European Parliamentary Elections Act 2002).

    So, my conclusion is that, either way, the fact that an Art. 50 decision/notification may be revocable actually strengthens the claimants’ case, especially given the fact that the executive’s clear intention is not to revoke and thereby effect a complete nullification of the relevant acts and the rights they contain.

  38. I ultimately concluded that it may not much matter to the Claimants, case whether they were revocable… But it’s a bridge that, as things stand at least, we’re not having to cross…

  39. Article 50 has ,not yet been triggered as the Referendum was not a Decision.
    It was a referendum which Government at the time stated that it would implement the result. Implementation requires a Decision and the notification of that decision under article 50.
    The whole procedure is predicated upon a Member State’s constitutional law, not that inferred into that by other Member State’s Constitutional laws and practices. That is explained by the large amount of preliminary work that had to go into the drafting of article 50 and the remainder of the articles enmeshed with it.
    If you did not know that, then perhaps assuming that there is no law and only doubt is counterproductive to the Rule of Law.
    May I suggest that your refer to Cambridge Professor Mark Elliot’s writings on his public blog: . He is an adviser to the House of Lords, so that you can get a fuller grasp of the interrelationship between International law of Treaties, and the specific article 50 issue in the EU goldfish bowl. I think Maugham has already cited an equally interesting article by Aurel Sari of Exeter University which addresses another aspect.
    The reason why I am not including Oxford is that the entire issue has been reduced to the level of an Oxford Union debate …. If you wish some comparative humour by on that venerable institution, way of light relief , may I suggest that you find a copy of Gerard Hoffnung’s excellent address to that body, particularly about European Holidays and consider the gravitational analogy of the Barrel of Bricks to the current situation. I hesitate to portray David Cameron as the hospitalised Brickie, but it is tempting.
    The European Parliament made the error of assuming that the Referendum was a decision, in a resolution of 16th October and even suggested that giving he result to the forthcoming Council Meeting constitute notification of a Decision. Rubbish! Great care should be taken not to assume that it is.
    Once the UK notifies its Decision, not before it has, it will have then jumped out of the Bocal de poissons – but only for these purposes – until the Instrument of withdrawal is finally agreed and ratified. Finding Nemo after that or climbing back in might be difficult, but there again, there is no point in flushing our Constitutional independence into the EU ‘oggin on a wonky assumption as to the Constitutional law of this Country in relation to the International law of Treaties and the Crown Prerogative to withdraw from them.
    I have not had the time to keep up with the various submissions, but ever party seems to be avoiding the issue, as it is no yet argued to be conclusive to heir cause: the removal of rights can only be achieved by Act of Parliament. I have the suspicion that that dry powder is being kept dry for the Supreme Court, by but Maugham as one client may not wish to comment on that.

  40. The reversibility of article 50 is irrelevant and a red herring. Article 50 separates the notification of leaving, from the decision to leave.

    Clause 1 states that countries may ‘decide to withdraw’ under their own ‘constitutional requirements’

    Clause 2 says once decided to withdraw the country ‘shall’ give notification, plus the procedured that subsequently apply.

    So the question in law is not whether government can give notification under article 50, it is how under our own ‘constitutional requirements’ does the uk decide to withdraw from the EU.

    If anything Clause 2 mandates that the government then gives notification once the decision is made, the point being that the decision has been made.

    Whether the notification is reversible is not relevant, before we give notification we will have ‘decided to leave’ The legality of how to decide to leave should in turn be about consequences of leaving have decided to leave – or assumes we leaving.

    The exams question is can the government decide to leave the EU using perogative powers, not can the government choose to give notification of leaving using prerogative powers.

    Interesting (and completely separate) questions then arise about whether there is a time difference between ‘decision to withdraw’ and notification of that decision. The 2 years starts from notifcation, not from decision.

    If we can delay notification then fine.

    If it is instantaneous, then 2 years starts from when the decision is made – be it the referendum result, the primeminister ‘deciding’ to leave, parliamentary vote or royal assent on primary legislation.

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  43. To Robert Fuller.
    I fear that I am unable to set your assumptions as to the operation of clauses 1 and 2 of article 50 within the context of the EU law and Treaty when set in the context of the fact that this Withdrawal procedure lies on the cusp between the internal operation of the EU Treaty and its relationship with the International law of Treaties.

    There is more evidence of precedent for a Treaty withdrawal notice to be subsequently reversed than there is for it to be final. I will not go into that here.

    To a certain extent not only it is as much up to the EU Council to “invent” its own reaction, as has been heavily hinted at by its President Donald Tusk, as it is for the United Kingdom to be able to decide whether at any stage of the process it wishes to continue. I agree that that does not appear to fit well with the mandatory “shall” in relation to the Two Year period, but the aim of that has been theoretically interpreted as a means of putting an end to a deadlock with intent to exit, not a revocation of the notice with a view to return, The United States’ flirtation with leaving the ILO Treaty is one example.

    The laws of Treaties are highly flexible given their subjects, wildly evasive and elusive States jealously seeking their own self interest and asserting a right to self determination.

    That this is not academic is perhaps best illustrated by Lord Heseltine’s invitation, as a past Chairman of the Board of Trade, to those seeking Free Trade to find such opportunities; he made it quite clear with his usual steely glare, whilst his reaction was polite that in his view, the illusion of the ideal would soon be overtaken by the reality that there is only limited opportunity of the application of such an idea in a since globalised world economy whose constituant areas sought to use such deviant Social Market theories as the German model to retain high cost production in their area with a tariff barrier other equivalent barrier to retain employment and demand.

    Bear in mind that in a Free Trade environment, its effect is to move factors of production to low cost areas, not retain them in high cost areas, which is what the combined franco-germanic models have jealously achieved, with the support of other Nordic countries within the EU.

    We may not be able to do anything else than remain within a service environment whilst developing high value processes within hopefully a reciprocated reduced tariff environment. That will be a challenge for the VAT/customs specialists and those currently operating into the EU under “passporting”.

  44. Article 50 says: “Any member state may decide to withdraw from the
    UNION in accordance with its own constitutional requirements” (emphasis added).

    In the current Brexit litigation arguments on both sides suggest that this rule is the equivalent of “Any member state may decide to withdraw from the TREATIES in accordance with its own constitutional requirements” (emphasis added).

    What if the two are not equivalent? If the CJEU gets involved this may become an open question. The CJEU could rule that the Article 50 process is an EU law process and not a process governed by international law. This could have major implications for the plans of the UK government, for example:

    1. It could mean that any use of the prerogative power is out of the question if the only potential prerogative power is the treaty-making power.

    2. It could also mean that the (EU law) definition of a “decision to withdraw from the Union” could become critical. For example, it would be open for the CJEU to rule that withdrawal from the Union means withdrawal from all aspects of the “acquis communautaire” including the internal market and customs union.

    3. In addition, it could mean that, at present, the UK simply has no constitutional requirements for making a decision of this kind, and that a new Act of Parliament would be required to define one because treaty-making powers would not be relevant.

  45. Paragraph 8 – the word you want is ‘loath’ not ‘loathe’. Loath means reluctant to, whereas loathe is an active verb meaning to detest. They are often confused.

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