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Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer

richard-langI’m glad if it was the Lord Chief Justice’s concern about the reversibility or otherwise of the Article 50 procedure which catalyzed the current debate on whether the Article 50 litigation needs a reference to the Court of Justice, as has been rumoured, but on the face of last week’s judgment it seems that the parties at least were in agreement on the point after all: it is not (they say) reversible: R (Miller) v Secretary of State for Exiting the EU, para 10 (hereinafter “Miller”).  However, I believe that there is a far simpler, and so far as I can see compulsory, route from the Supreme Court to Luxembourg in this matter, assuming that the Crown does indeed appeal today’s ruling to that court, and that is that (a) the case turns on the interpretation of the phrase “in accordance with its own constitutional requirements” from Article 50(1) of the Treaty on European Union (“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”), and (b) interpretation of the Treaty, or indeed any EU Law, is the exclusive competence of the Court of Justice of the EU (“CJEU”).

I agree entirely with the description of the workings of Article 267 of the Treaty on the Functioning of the European Union (which provides for references to the Court) in George Peretz QC’s piece, “Could the Article 50 litigation result in a reference to the European Court of Justice?” of 17th October.  (See also, referring to Mr Peretz’s piece, L Kuenssberg, “Could the European Court stop Brexit?”)

As Mr Peretz has stated, “[t]he power (or duty in the case of a national supreme court) to make a reference to the CJEU arises only when the answer to the question is necessary to decide the case”.

However, to my mind, it is the ascertaining of the exact meaning of the phrase “in accordance with its own constitutional requirements” which is absolutely essential to the outcome of this case.  While I personally was very sympathetic to the Government’s view that the claimants have “conflate[ed]… the proposed notification process [in Article 50(2) TEU] with the decision which is to be notified” (para 9 of the Detailed Grounds of Resistance on behalf of the Secretary of State), the fact remains that the question which the claimants were asking the High Court to answer was whether either a decision by Parliament, or a decision by Government ministers in exercise of Crown prerogative powers, is the constitutionally correct decision which would satisfy the UK’s constitutional requirements under Article 50(1) TEU (see for example, supporting the arguments of the Lead Claimant, the Skeleton argument on behalf of the second group of interested parties, para 2, and later at para 4: “This challenge is concerned with who makes the “decision””).  The High Court said that “nothing really turns on this” (Miller, para 16), taking an “All roads lead to Rome” approach which indicates that this court at least was not prepared to rule Article 50(1) out of contention.

Therefore, as I have said, the interpretation of the phrase “in accordance with its own constitutional requirements”, a piece of Union law, is necessary to enable the Supreme Court to give judgment in the action.  Thus, the Supreme Court must make a reference.

This is hardly just something which it “might be nice to know”, as Mr Peretz puts it.

Admittedly, as I stated in my piece in the New Law Journal in August, the CJEU would probably just send the matter back to the national court (although very strange things are happening these days!), but second-guessing that that is what the CJEU would do is not a ground for not referring.  Nor could one plead “acte clair” as the legislative provision in question seems to be one of the most contested, and least clear, of recent times!

Of course, were the Supreme Court to refuse to make a reference, it would not be the first time a court of last instance of a major Member State had refused to use the preliminary reference procedure in a constitutionally important case.  The Bundesverfassungsgericht (German Federal Constitutional Court, “FCC”) in fact has quite a reputation for doing this.  However, it usually finds a way out of the obligation, for example by saying that its role in the matter is only interlocutory (constitutional cases in Germany effectively being “referred” themselves from lower domestic courts).  Other principal decisions of the FCC about European Law have come about via a constitutional complaint, which the FCC then argued was an extraordinary remedy, justifying its refusal to refer on this ground.  The Supreme Court would need to come up with a comparable excuse or excuses.  Furthermore, in FCC cases about the ratification of the Maastricht or Lisbon Treaties by Germany, no particular clause from those Treaties was in need of interpretation.  Again, the Supreme Court may need to be creative to escape its obligation to refer in the litigation concerning Article 50 TFEU.

I suppose my main concern is that, if in the end neither the High Court, nor the Supreme Court, has made a reference to the CJEU, then the Supreme Court’s judgment could be criticized as having been reached in breach of EU Law, the Supreme Court judges having arrogated to themselves a power to interpret the Treaty which they simply do not have.  In a worst case scenario, the European Commission might even sue the UK, as it is entitled to do where a national court is responsible for a breach of EU Law, which would include where a court of last instance has wrongly failed to make a reference to the Court of Justice.  Might the losing party in this highly fractious case push for this?  Might an apparently angry Commission gleefully comply?

It is instructive that Article 50 started life in the so-called Constitutional Treaty, which it may be remembered was abandoned. The archive shows that some forty nine amendments were proposed in relation to this provision, around half of them suggesting its complete deletion on grounds that such a clause was contrary to the Treaty’s stated goal of ever closer union, or that it was unnecessary given the Vienna Convention on International Treaties, or both.  Hidden away amongst these proposed amendments is one from the MEPs Olivier Duhamel and Elena Paciotti proposing the excision of the phrase “in accordance with its own constitutional requirements”, on the grounds that whether or not the government of the withdrawing State is respecting its own constitution “can’t be the Union’s problem” (I translate from the French).  Although Professor Duhamel and Ms Paciotti’s proposal was never taken up, I respectfully agree with its sentiment.  This should never have been made a Union problem.  But it was, and, like it or not, that makes it the Court of Justice’s problem too.

Dr Richard Lang practised European law for several years in Brussels. He is currently Senior Lecturer in Law at the University of Brighton. 

(Suggested citation: R. Lang, ‘The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer’, U.K. Const. L. Blog (8th Nov 2016) (available at https://ukconstitutionallaw.org/))

15 comments on “Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer

  1. dbfamilylaw
    November 8, 2016

    Reblogged this on dbfamilylaw.

  2. fatcat62
    November 8, 2016

    Reblogged this on fatcat62's Blog.

  3. Pingback: Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer | fatcat62's Blog

  4. Sean Feeney
    November 8, 2016

    It is trivially acte claire that the CJEU would say that the meaning of “in accordance with its own constitutional requirements” is for a member state’s national courts to decide.

    The CJEU has no competence to declare the “constitutional requirements” of a member state.

    It is acte claire that the purpose of article 50(1) is for the EU to recognize a member’s state’s decision in “Any Member State may decide to withdraw from the Union “.

    This is why the defence were correct to state it is this antecedent decision which is consequential and not, as the court found, notification.

    Notification is a obligation consequent to this recognition under EU law of a domestic member state’s decision.

    • Richard Lang
      November 10, 2016

      Many thanks for the comment Sean. Just coming back to Case C-145/04 Spain v UK, which I mentioned in my NLJ piece, the Court is certainly happy to discuss the UK’s constitutional requirements at some length before conceding in para 79 that, because the matter concerned is not in the Treaties, there can have been no breach of Union Law. From that I conclude that the CJEU would probably send the matter back, but I would not call that authority “claire” in the sense that it is so obvious as to leave no scope for reasonable doubt. The Court’s concession still implies that the non-existence of the breach is its to declare! As for Case 300/04 M.G. Eman and O.B. Sevinger v College van burgemeester en wethouders van Den Haag, para 50 is a little better but still not exactly “claire”; since that was itself a preliminary reference case, which the Court happily entertained.

      • Sean Feeney
        November 11, 2016

        The starting point for the Supreme Court will be the domestic reasoning of the Court of Appeal in Shindler & Anor v Chancellor of the Duchy of Lancaster & Anor [2016] EWCA Civ 469 (the argument on Shindler is expressly incorporated into the judgment in Miller at [73] via the express adoption of the transcripts; also see all the arguments in Miller about “rules of the club” and Miller at [61]).

        The ratio of the Court of Appeal in Shindler was applied, without express citation, at [93(7)] of Miller:

        “93(7) In our view, section 3(1), relating to the ability to seek references from the CJEU under what is now Article 267 TFEU and the obligation of national courts to determine questions as to the validity, meaning or effect of any EU instrument in accordance with the jurisprudence of the CJEU, is most naturally to be read in context as presupposing the continued applicability of EU law and the EU Treaties in relation to the United Kingdom unless and until Parliament legislates for withdrawal.”

        On this basis, the ultimate question of law is not the meaning of “constitutional requirements” but whether The European legislature returned all competence (including the duty to apply EU law and to refer to the CJEU) for the duration of the decision to leave in Article 50(1).

        If there is an application for a preliminary ruling to the CJEU in the Miller appeal, the Supreme Court will have to reconsider whether CJEU competence is or is not ousted by Article 50(1).

        More importantly Shindler at [58] gives the Supreme Court a ready made reason to reverse the Divisional Court decision in Miller:

        “58.I doubt whether, purely as a matter of domestic law, Parliament would have intended section 2(1) to apply so as to give primacy to EU law where the very question in issue is whether the UK should remain bound by EU law. The effect of section 2(1) is to bind the UK to the rules of the club whilst it remains a member; but I do not think it can have been intended to bind the UK to those rules when the very question is whether it should be bound by those rules. Parliament agreed to join the EU by exercising sovereign powers untrammelled by EU law and I think it would expect to be able to leave the EU in the exercise of the same untrammelled sovereign power, whether the later legislation expressly dis-applies section 2(1) or not. It is not, in my view, a question of implied repeal but rather a question of the scope of section 2(1). Parliament would not have intended that the UK should give precedence to EU law when the very question to be decided is whether the UK should continue to give precedence to EU law.”

        The grounds of the Miller claim simply disappear when the focus of the claims is the decision to leave and not the “decision” to notify if Shindler is correct (and it must be else there would be a substantive bar preventing a member state from ever leaving the EU).

        Notification is an obligation under international law; see “Philip Allott: Fundamental Legal Aspects of UK Withdrawal from the EU: Eight Stages on the Way to a New Relationship” on this blog.

        https://ukconstitutionallaw.org/2016/11/09/philip-allott-fundamental-legal-aspects-of-uk-withdrawal-from-the-eu-eight-stages-on-the-way-to-a-new-relationship/

        If there is domestic power to leave the EU, the obligation to notify is simply read into the domestic power to leave on Marleasing principles (if applicable) or under general presumptions of construing domestic statute consistently with international obligations (see Miller at [40]).

        I think the Supreme Court will focus on the decision to leave and reverse Miller finding it unnecessary to decide on the CJEU competence point of Article 50(1) either because the judgment does not depend on this (it can proceed on EU law assumptions if appeal succeeds on assumptions favourable to the respondents Milelr and Santaos) or find the issues acte claire.

        If the Supreme Court allows the appeals, the question it should have to grapple with is: when was the decision to leave made ie when does the obligation to notify arise.

        Breach of the obligation to notify could ultimately lead to infringement action if political disputes on the withdrawal agreement ever turn into legal disputes between member states.

        I think if the Supreme Court does grapple with this question, it will decide the decision to leave would only be made when the Supreme Court gives judgment, because only the Supreme Court has power to settle the question of the “constitutional requirements” of the UK under the constitutional doctrine of the separation of powers.

        This would require varying the presumption of regularity (it would breach the principle of comity if the Government notified while the Courts were exercising their exclusive jurisdiction to interpret the law) and finding, in this unique case, that judicial review is a duty not a discretion.

        This would avoid infringement action the UK’s decision to leave was made on 24 June 2016 when the referendum outcome was certified.

        If the Supreme Court upholds the appeals and finds a decision to leave has been made, it is aguably itself caught by the obligation to notif as an aemanation of a member state.

        There’s quite a lot for you to disagree with here!

  5. daveyone1
    November 8, 2016
  6. truthaholics
    November 8, 2016

    Reblogged this on | truthaholics and commented:
    “It is instructive that Article 50 started life in the so-called Constitutional Treaty, which it may be remembered was abandoned. The archive shows that some forty nine amendments were proposed in relation to this provision, around half of them suggesting its complete deletion on grounds that such a clause was contrary to the Treaty’s stated goal of ever closer union, or that it was unnecessary given the Vienna Convention on International Treaties, or both. Hidden away amongst these proposed amendments is one from the MEPs Olivier Duhamel and Elena Paciotti proposing the excision of the phrase “in accordance with its own constitutional requirements”, on the grounds that whether or not the government of the withdrawing State is respecting its own constitution “can’t be the Union’s problem” (I translate from the French). Although Professor Duhamel and Ms Paciotti’s proposal was never taken up, I respectfully agree with its sentiment. This should never have been made a Union problem. But it was, and, like it or not, that makes it the Court of Justice’s problem too.”

  7. Chris V
    November 9, 2016

    I find the suggestion that, the UK government having given notice to trigger article 50, the UK Parliament could later withdraw it because it did not like the terms on offer, fairly bizarre. I take the practical point about change of government, but that arguably is just another form of national change of mind. Would the EU really contemplate article 50 negotiations terminated because the terms were not good enough and then restarted in a second triggering of article 50. Or is the suggestion that the parties return to the situation ante bellum and a member state disallowed an article 50 notification for a minimum number of years?
    A more absurd suggestion would be that having failed to consult Parliament, the CJEU decides that the UK government had failed to comply with the terms of article 50 by not observing the correct constitutional procedure. Let’s start crowd funding for that!

  8. I can think of nothing more dangerous to the rule of law than the idea that the decision on Brexit could be handed over to the ECJ. It would be regarded as a delaying tactic at best and a wrecking tactic at worst and could lead to public disorder. I cannot see the Commission either wanting or supporting such a legal challenge they clearly want the Brexit process to be got on with ASAP to minimise the unsettling effect on the EU

    In any event a reference is completely unnecessary and unjustified. How on earth can the ECJ decide whether the UK Government or Parliament has acted “in accordance with its own constitutional requirements” that is quintessentially a decision to be made by the Courts of the UK

  9. Peter
    November 10, 2016

    Surely it is possible, even if by virtue for example of the Vienna Convention on Treaties, to make the Article 50 notice just by saying so. The letter to the Commission would state something like “the government of the UK has decided to leave the EU subject to certain conditions …”.
    Then if the terms that we are offered are refused the notice is inoperative.
    I can see the political problems with that.
    Firstly the government would be accused by the press of not being committed. Secondly such a notice would put our future in the hands of the rest of the EU, or any single one of them. Any one of them that wants ut to leave – France for example – would, ironically, try to give us what we want. Any country that wants us to stay will refuse to give us anything. All it takes will be two countries on other side of the divide.
    So realistically the only condition that might be acceptable is one as vague as “subject to any new treaty is acceptable to parliament”.
    That places the matter eventually in the hands of parliament, which is where it should be anyway – according to the law as it currently stands.

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