There is no doubt there is a political route to revocability: if the other 27 agree, we can remain. But to improve the bargaining position of the UK, to ensure we retain the opt-outs and rebates that we presently enjoy, and to place the decision entirely in the hands of the UK’s Parliament and – if it chooses – its people we must seek to establish a legal route to revocability. We must seek to secure a right for Parliament to withdraw the Article 50 notice – if it chooses.
The permission decision of the Court of Session will be handed down on Tuesday at 9.30am. I was warned before the hearing – once the judge was known – that we were likely to have a bumpy ride and so it proved. But we have a right to appeal to the Inner House and, should we need it, there is an appeal to the Supreme Court.
I believe we are right and the question should be referred. There are a number of reasons why I say this. But the main argument is this.
You cannot sensibly pretend that Parliament is not considering whether to revoke the Article 50 notice. The only amendment to the Repeal Bill that passed in the Commons opened the door to exactly that possibility. But don’t accept my characterisation: it’s exactly how (for example) Sir Oliver Letwin (speaking against it) put it. So did others.
In those circumstances it is vital that the UK Parliament knows whether it possesses that power. Indeed, it is vital that the EU27 knows whether Parliament possesses that power. And both need to know before the question whether to exercise it arises. If Parliament doesn’t know then – should Parliament come to exercise the power – there will be chaos for the UK and the r27. There will be a period of many months in which we and they may not know whether the UK is inside or outside the EU. So it is not practical and it is not sensible to wait and see. When decisions of this magnitude are being contemplated the rules must be known in advance.
And there is no good argument to the contrary. None at all.
Stripped of legal niceties, all the Government can say is, ‘we do not plan to revoke’. But (see that Oliver Letwin quote again) it is not for Government to decide. It is for Parliament to decide. (And, of course, both Governments and their positions can change.)
That is why I think it is important that we know the answer. And if, as I expect, Lord Doherty in the Court of Session disagrees and refuses to refer the matter to the CJEU it will be my advice to the seven petitioners that we should appeal to the Inner House of the Court of Session and, if necessary, the Supreme Court. (We have a right to appeal to the Inner House; we would need permission for a further appeal to the Supreme Court).
To do this we will need further funds.
As matters stand (in this case as in many others that I and the Good Law Project am and have been involved with) I am personally indemnifying the petitioners against the risk of costs falling upon them. I have no money other than what I have earned in a relatively short career at the Bar. That is a difficult financial burden to sustain in one piece of litigation; it is impossible across many.
So, if we lose on Tuesday, I will launch a further fundraising on Crowdjustice to protect us against adverse costs. You will have the opportunity to decide.
In the meantime, you can see our claim here.
You can see the Government’s answers here.
You can see the affidavit of Joanna Cherry QC here.
And you can see the affidavit of Andy Wightman here.
And you can see the speaking note of Aidan O’Neill QC here.
To my mind, it’s not only the question of whether it can be revoked which needs to be clarified; I’d say the question of whether the government acted with due care and attention in issuing it as hastily as they did throws its constitutional validity into doubt. As far as I can see, they made no real attempt to establish that there is either a clear public interest in taking such a drastic step or an unequivocal public mandate to do so regardless of any adverse consequences.
Unless the British constitution absolves the government of a duty of care to future generations and the public at large, my feeling is there’s a strong case that last year’s Article 50 notification was never valid at all.
Ok, I’m as disappointed as you about the outcome of the referendum. I think it was the wrong decision, but it was the decision of the electorate. Isn’t it time now to stop these futile rearguard actions, stop wasting time and other people’s money, and accept that we’re getting out of the EU?
Just suppose by some massive fluke the decision is overturned and we remain. Such an outcome will NOT lance this boil and the same arguments will continue to fester on for a generation, with the chance of yet another referendum always hovering in the background.
I think a better use of everyone’s time and money is let BREXIT happen, but prepare the campaign now for re-entry into the EU sometime around 2030, by which time it should be clear that leaving was a massive mistake. So clear that even today’s BREXITeers can’t dispute it. I suggest that BRE-ENTRY is a catchy name for the campaign.
Nobody ever said that Article 50 cannot be reversed. However, there are only two arguments (Article 50 itself and international law) that can be used for the ECJ to rule that Brexit can be revoked – and neither will work:
Two issues in the text of Article 50 are relevant to revoking Brexit: the legal relevance of ‘intention’ (as mentioned in this article) and the relationship between ‘intention’ in Article 50 (2) and ‘withdrawal’ from the EU in Article 50(5).
Various claims have been made about the legal significance of ‘intention’ to the effect that it has no legal status or that the law recognises that intention can be overturned as it is not a binding commitment.
However, the role and relevance of intention in the law is contingent, and EU law does not have any general position on the role and relevance of ‘intention’. In fact, there is no provision of EU law, nor do proponents offer any specific authority in support, on the status of an ‘intention’ under EU law.
And, even were ‘intention’ to have an autonomous meaning under EU law, there are good reasons to believe that the legally relevant issue under Article 50 is not ‘intention’ but ‘notification’, and only a formal and clear act of notification can provide the requisite certainty and clarity which the law is called upon to provide in the withdrawal procedure – it is the UK’s notification which started the clock ticking on the two year time period under Article 50(3), not the UK’s ‘intention’.
Also, the arguments based on the difference between Article 50(2) and 50(5) do not change this position given that 50(2) only speaks of ‘intention’ to withdraw, and 50(5) only speaks on the procedures for readmission after a member state has withdrawn.
In essence, Article 50 envisages that there is a difference between an ‘intention’ to withdraw and actual ‘withdrawal’ such that the former is revocable but that latter is not. Or, put another way, if ‘notification’ and ‘withdrawal’ were synonymous under Article 50, then the procedure for reapplying under Article 50(5) would explicitly refer also to the ‘notification’.
That said, the problem here is that there is no definition of ‘withdrawal’ under Article 50(5), and the legal effect of leaving the EU is that EU law ceases to apply to the UK, subject to whatever agreement is put in place between the UK and the EU in its lieu), as covered by Article 50(3), which is the closest Article 50 comes to a definition of withdrawal, occurs two years from notification unless otherwise agreed by the UK and the EU.
But there is nothing to suggest that Article 50(3) envisages that this ‘notification’ could be contingent on some other intervening act such as a revocation of such ‘notification’.
Therefore, any evidence submitted on the text of Article 50 as to whether the UK’s notification can be revoked is at best inconclusive, at worst, points in favour of a no-revocation position.
As the Treaties are agreements between sovereign states, the sovereignty of each EU member state includes the right to notify to withdraw but also the right to revoke such notification at any stage prior to actual withdrawal.
As such, the right to revoke is essentially read into the sovereignty of EU Member States, and the sovereignty of the EU’s member states – and the agency, rights and duties that accompany it – are recognised and upheld by International law.
However the problem here is that international law is not directly relevant to the question. It is uncontroversial that international law recognises the general right to accede to and withdraw from international treaties as a function of the sovereignty of states.
And international law also recognises that where states have agreed to regulate matters in a particular way, particularly in the terms of an international treaty, the treaty provisions will be applied over general international law.
Therefore, Article 50 is a ‘lex specialis’, which would be enforced in any dispute about the logistics of withdrawal over the provisions of general international law and in particular the general rights and duties of sovereign states. Thus, the general point about international law is subject to the Article 50 procedure which simply begs the question – does Article 50 allow for a revocation of notification of withdrawal? And the answer is NO!
Another line is recourse to Article 68 of the Vienna Convention on the Law of Treaties, the provisions of which clearly and unambiguously state that ‘a notification [for withdrawal] may be revoked at any time before it takes effect’.
However, this is not relevant to Article 50 because, for one thing, it stipulates a slightly different procedure which includes the possibility of other states objecting to the withdrawal. But even if it was, the European Union is not bound by it, and not all EU member states are signatories to the convention (Romania, for example, is not a signatory) but, and more significantly, the EU itself is not a signatory.
As such, it does not bind EU law and can therefore have no direct bearing on the revocation question under Article 50. Therefore, the legal question invariably turns to the interpretation of Article 50 itself.
None of this, of course discounts the possibility that the ECJ may draw on international law in answering this question but international law would only be able to treat the issue as entirely a matter of EU law, and Article 50 discounts the ECJ ruling in favour of revocation – as I have stated above.
So in essence, the ECJ cannot rule in favour of revoking Brexit. But if they do, it would be interesting to see on what grounds they make such a ruling!
The report above is premised on Parliament deciding to withdraw the Art 50 notification. Where constitutionally is that ability to be found? Miller and the notification act were about Parliament giving permission to the PM to notify. It did not instruct the PM to notify. Presumably if the Gov were minded to withdraw notification it’d need permission. But getting permission and being instructed are not the same thing.