This morning six Scottish Parliamentarians and I return from the Court of Justice in Luxembourg to Scotland’s Highest Court, the Inner House of the Court of Session.
In Luxembourg we persuaded the CJ, in the face of opposition from our own Government, the EU Commission and the EU Council representing the 27 other Member States that the UK has the right, in accordance with its constitution, to withdraw the Article 50 Notice without cost. We are only now beginning to understand what a game changer the CJ decision is.
In purely neutral terms it puts another option on the table for MPs. But it also changes the political dynamics. Theresa May’s strategy is to run down the clock and seek to trap MPs between the devil of her deal and the deep blue sea of no deal. But this strategy is strategically holed because the CJ decision means MPs no longer have to choose between making political reality the PM’s personal conviction that what the people want above all else is to end free movement or the grotesque and unforgivable self-harm of no deal.
But there is still one question outstanding.
The CJ decision means MPs know what EU law requires – a decision to revoke taken in accordance with our constitution. But they do not yet know what our constitution says about how to revoke.
It is clear that two things need to happen. We need, first, to withdraw the A50 notice and, second, to change “exit day” in section 1 of the European Union (Withdrawal) Act 2018 (something which a Minister can do). But how do they happen?
On one view neither needs primary legislation. The PM can be compelled to withdraw the A50 notice and a Minister can be compelled to kick “exit day” sufficiently far down the road that it can be sorted out later in a legislative tidying up exercise by a binding motion of MPs. Let’s call this the Motion route. Some of the arguments for the Motion route are sketched here (in paragraph 13).
The other view – let’s call it the Legislation route – is that we do need primary legislation in order to undo what the Miller decision caused Parliament to do in the European Union (Notification of Withdrawal) Act 2017 and also the Withdrawal Act of 2018. The case for the Legislation route is made here.
But which is right? The Government itself has at different times advanced both the Motion route and the Legislation route.
But we believe, just as we believed MPs deserved to know what EU law requires, that MPs need to know what UK law requires. Forearmed with knowledge it is then for them to decide. A decision of this moment requires nothing less than clarity.
Neither route is especially technically difficult. I have set out below the text of a short Bill that it seems to me (please feel free to comment) would suffice were MPs to need to take the Legislation route.
But passing legislation should Government remain hostile undoubtedly requires more complex sequencing than a single binding motion.
So this morning we will respectfully ask the Inner House to let us finish what we started. We will ask it to set a short timetable for written and then oral arguments on which – the Legislation or the Motion – is the right route. If the Inner House agrees we are likely to adopt an amicus type stance in the arguments.
Of course, we do not know what position the Government will take. It may well be that it will just do what it did before the CJ – continue to stand on the silly pretence, in the face of political reality, that the question is purely hypothetical.
My own view, expressed with diffidence, is that the specific interrelationship between politics and the law that would come into play were Parliament to adopt the Motion route means it is likely to be sufficient. But best that MPs know for sure.
If you value the work Good Law Project does – work that most of our rather frightened establishment finds difficult to fund – you can support it here. Unless we secure adequate funding we are likely to be compelled to pull down the shutters.
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1.— Duty to revoke notification of withdrawal from the EU
(1) The Prime Minister shall notify the European Council of the United Kingdom’s revocation of its intention to withdraw from the European Union
(2) This notification of the revocation of the United Kingdom’s intention to withdraw from the European Union shall be made before the date on which the Treaties would otherwise cease to apply to the United Kingdom under Article 50(3) of the Treaty on European Union.
(3) The European Union (Withdrawal) Act 2018 is hereby repealed.
2. Definition clause
For the purposes of this Act ‘the Treaties’ means the Treaty on European Union and the Treaty on the Functioning of the European Union.
Waiting for Godot 
Well done. I will forward this to my MP.
“…a Minister can be compelled to kick “exit day” sufficiently far down the road that it can be sorted out later in a legislative tidying up exercise by a binding motion of MPs”.
But wouldn’t this be a clearly improper use of ministerial power and therefore unlawful? Isn’t the power to change “exit day” intended only to facilitate the giving effect to the UK’s original decision to leave the EU, rather than a later decision to remain?
You’ve certainly captured the question. The “My own view…” paragraph sets out what I think may be the answer.
Should also mention Euratom.
(cont’d)
I can even imagine a deception with a series of 2 (3) votes of No Confidence, as follows:
Parliament commands Gov’t to withdraw Article 50, they refuse. Parliament calls vote of No Confidence and wins, government then takes two weeks out and comes back with the promise that if Parliament votes again and give them their confidence, they will withdraw Article 50.
Parliament believes them and reinstates the government, but then the government either goes back on their word and don’t revoke Article 50 (the deception), or do it such a manner that it is ineffective, e.g., trying to attach conditions to the withdrawal knowing full well that a withdrawal to be effective has to be unconditional.
Parliament realises it has been duped, votes No Confidence again and wins once more, but by now it’s too late… the government argues that it’ll take three weeks to form a new government, but by then it’ll be truly too late.
And Europe won’t extend Article 50 because a) they would never received a formal request from the UK, and b) because the UK wouldn’t have called a GE or a referendum yet, which seemed to be prerequisites for an extension.
Suppose that the court rules that revoking article 50 required only a vote of the commons and that changes to the EU (Withdrawal) Act in this way required repealing the Act and so primary legislation. Suppose also that the former happened but the latter did not due to the obstruction of the government. What would the legal position be after exit day?
52% voted to leave. Which part of democracy has your legal training ignored? We voted to leave the EU, Single Market and the Customs union. David Cameron spelled out what leave meant with crystal clarity.
By all means rescind Article 50. By all means ignore the majority. By all means insult their intelligence. That is your prerogative. However, do not be surprised if as a result of your arrogance, they become extremely cross. Who knows where that will lead.
I would respectfully suggest that you stop playing with fire. You might not have access to an extinguisher.
@Angus 3:08pm
My guess is that the notice that purported to revoke the Article 50 notification would be deemed ineffective (under EU law), since it wouldn’t be unequivocal and unambiguous (as there would still be a statute in force embodying the intention of parliament to leave on 29 March 2019).
But what do I know …? I was convinced that the CJEU would find against the unilateral unconditional revocability of the Article 50 notification.
And what happens if the PM doesn’t?
I’m not sure if Kevan above is making a threat or expressing a fear but he has a point. I believe that for government/parliament to withdraw Art. 50 without a people’s vote would result in extremist behaviour by a significant number of people.
There has to be a people’s vote and remain has to be an option. A three way choice – may’s deal/no deal/ remain – on a single transferable vote is the obvious and most democratic way forward.
If that means delaying the deadline date so that it can be properly organised then so be it.
In the meantime, please can everyone under 30 who is reading this and who has not personally registered on the electoral role
(a) check that your parents have not registered you at their home and are voting on your behalf behind your back and
(b) get yourself registered.
In addition, if you are a student, as soon as you get back next term please can you get the Students’ Union to carry out a massive publicity campaign to get its members to register and vote.
I’m not advocating support for any particular vote. I only want to encourage the demographic that has historically participated the least to engage personally with the democratic process.
Dues to the lack of time, the best way for Parliament to directly stop a “no deal” Brexit is for it to by-pass the government altogether. The Article 50 judgement by the CJEU allowing unilateral revocation does not require any negotiation or even any diplomatic contact: it simply requires that a decision (in accordance with the UK’s constitutional requirements) be addressed to the EU council.
There’s no reason why this cannot be done in an act of Parliament itself. A new bill could contain a special section, specifically “addressed to the EU council”, stating that the UK’s notification of intent to withdraw from the EU is unconditionally and unequivocally revoked, effective as soon as the bill is enacted. The European Union (Withdrawal) Act 2018 could also be repealed.
This has the advantage of not having to rely on the Prime Minister to carry out a statutory “Duty to revoke notification of withdrawal from the EU”. This could be critical because the current Government could fall at any time and the Prime Minister might not remain in office long enough to perform this duty. In addition, the Prime Minister might deliberately fail to perform this duty by invoking some dubious legal argument, which could drag the whole process into the courts.
Presumably the Government would oppose such a bill, but the House of Commons could solve this problem by simply rewording its standing orders and rules of procedure to re-organize the way it conducts business and schedules debates [i.e. by removing the Government’s current ability to control the parliamentary timetable]. If necessary, the procedure rules could even be changed to allow a bill to be passed without 3 readings in order to save time.
This would stop a no deal Brexit directly. Parliament could then decide what to do next.
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