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.
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.