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.Follow @jolyonmaugham