The Court of Justice of the EU yesterday put a number of questions to the Government’s advocate about the timing of the meaningful vote. (You can read my largely verbatim albeit incomplete note of the hearing here). Obviously the CJEU wanted to ensure that the Opinion – a non-binding view from a nominated judge on the Court – and subsequent binding Judgment would come early enough still to be relevant to those decisions.
Lord Keen, for the Government, explained that the so-called meaningful vote was expected on 11 December 2018 and if it passed a number of legislative steps would follow.
For what it’s worth, if forced to guess, I would anticipate an Opinion early next week and a Judgment after the meaningful vote.
But does any of this really matter?
It seems vanishingly unlikely that Theresa May’s deal will pass Parliament at the first time of asking. Even The Sun says she will lose by around 200 votes. Indeed, the truth is that this outcome has been inevitable ever since pro-Brexit campaigners welded two groups of voters (‘nativists’ who sought the protection of a more closed economy and ‘buccaneers’ who perceived opportunities in a more open one) with contradictory objectives into a false coalition for Leave. The only surprise is that it has taken two and a half years for this contradiction to be exposed,
And a number of consequences will follow from her defeat. But, in terms of timing, the most important is that there will be plenty of time for MPs to consider and digest the consequences of an Opinion and Judgment that are likely to confirm what five QCs instructed by the Government have already said, in the Government’s application for permission to the Supreme Court (at paragraph 38), namely, that Parliament can by a majority can direct the Government to withdraw the Article 50 notice.
Indeed, for those of us who continue to believe that the country’s best interests are served by Remaining in the EU, it may well be helpful if the Judgment comes after the so-called meaningful vote. It will only be then, when the country is looking down the barrel, after a crushing rejection of a deal that took years to negotiate, that MPs are likely to begin to focus on alternatives.
It is only then that they will engage, seriously, with revocation. It will only then become apparent to them that this is a simple mechanic that they control; that delivers a stronger economy than any alternative; restores the United Kingdom to its rightful place as a rule maker rather than a rule taker; has greater democratic legitimacy than either a buccaneer or nativist’s vision of our future; and, crucially, avoids the chaos of ‘no deal’.
Waiting for Godot 
Courtroom drama indeed 🙂
The benefit of getting the ruling after the meaningful vote in Parliament depends on Theresa May’s deal being voted down by a significant margin, as seems likely.
If the AG’s opinion goes against the arguments in favour of revocability then MP’s being presented with a Deal/No-Deal option seems inevitable.
Can we muster a significant change of political/public opinion?
And when our rebate is removed, and when Italy collapses, and when free movement means even more pressure on housing, and when the EU army marches us into Ukraine, and when the EU’s closed-shop trade barriers prevent us trading freely with the markets that are actually growing around the world – what then?
I’m no lawyer but I imagine that a judge’s decision on a point of law should be based on the law, not on the judge’s perception of the common good. There should not be too many exceptions to this but this may be one. If after careful consideration of the legal points they come to a decision one way and after staring into the abyss they know that the common good is best served by deciding the other way, I hope they make a sensible decision rather than legal one.
It seems that there are only three possible ways forward for the UK:
a) leave with no deal,
b) leave with May’s deal and
c) withdraw the Article 50 notification and remain.
If we want Parliament to make a considered decision, then it needs to know the decision of the court. Without it, they don’t know if they are deciding between
1. a and b or
2. b and further discussion of whether it should be a or c.
Personally, I hope May’s deal is voted down and there is a people’s vote between remain and no deal. I can see how people who are happy to settle for second best might support May’s deal rather than risk the least desirable outcome, but I can’t see how anyone would think it’s the best of the three.
If the UK can unilaterally withdraw the Article 50 notice, then (logically) we also have the unilateral option of extending the negotiation period with the EU – we could withdraw the Art 50 notice then serve another one the next day, which would reset the two year clock. Perhaps an abuse of process, but the CJEU says we can withdraw the notice, and the Treaty says we can serve another one.
I’m not saying that’s the best outcome – personally I think we should have another referendum, and hope we then remain in the EU. But even those who think we should leave, or who think on principle that we should respect the “leave” decision of the 2016 referendum, might coalesce around a decision to push the timetable out while we work out what we do.
That’s not how it works, I’m afraid. A revocation is only a revocation if it’s intended actually to revoke.
Is that right, as a matter of (European) law? Article 50(2) talks about a member state notifying the European Council of its intention to leave the EU, but once that notice has been given, the existence of the notice governs how the rest of the Article works. It would be odd if the court looked behind an Article 50 notice and said “ah, you didn’t really mean it, you don’t actually intend to leave”. Similarly with a notice to revoke a notice: surely the existence of the notice is what governs?
And the UK, in giving a revocation, would be intending to revoke the notice given in March 2017. It might well be intending to deliver another notice, but that’s irrelevant to its intention in relation to the previous notice.
As I said before – likely an abuse of process. But does that necessarily mean it’s unlawful…