UK Constitutional Law Association

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Mikolaj Barczentewicz: The Supreme Court Should Not Refer to the EU Court of Justice on Article 50

Mikolaj BarczentwiczOne of the most discussed aspects of the forthcoming appeal in the Article 50 litigation is the issue whether the Supreme Court should make a reference to the Court of Justice of the European Union. George Peretz QC and professor Mike Wienbracke argued that it should not (or at least will not), whereas Richard Lang and professor Daniel Sarmiento argued that it should. There are, however, two arguments for why the Supreme Court should not make the reference that have not yet received adequate attention. First, establishing whether an Article 50 notification is revocable is not necessary for the Supreme Court to decide the case because the claimants ought to lose even if it is irrevocable (and not merely because both parties stipulated irrevocability). Second, even if the first argument is wrong and the case does turn on revocability, it is still the case that no UK court has a legal power to make a reference to the EU Court, because the European Communities Act 1972 does not incorporate EU law that purports to regulate withdrawal from the EU.

Before I turn to those arguments, I would like to direct reader’s attention to an interesting statement made in Parliament on 7 November by the Secretary of State for Exiting the EU. In response to a question why his lawyers stipulated that an Article 50 notification would be irrevocable, Mr Davis said: ‘The reason was not really a point of law so much as a point of constitutional and political reality. I did not see it as possible that we could reverse the decision of the British people.’ This answer may suggest that learned legal discussions on the true meaning of Article 50 will not influence the government’s strategy on appeal.

Revocability of an Article 50 notification not central to the case

Under EU law (Article 267 TFEU), a domestic final court of appeal is under a duty to make a reference to the Court of Justice only if a decision on an issue of the interpretation of the EU Treaties is necessary for the domestic court to give judgment. The commentators have already identified several reasons why interpretation of Article 50 TEU is not necessary for the Supreme Court to give a judgment:

  • Both parties to the present litigation have stipulated that an Article 50 notification of a decision to withdraw from the EU is not revocable (though it is clear that both High Court and the Supreme Court could disregard that).
  • Even if the notification is irrevocable, there is still a possibility that withdrawal negotiations will end in something other than withdrawal (e.g. that instead of losing UK as a member, all the member states will unanimously agree on a new EU reform treaty). (Peretz raises this point).
  • Aside from the issue of revocability, by the reference to a Member State’s ‘own constitutional requirements’, Article 50 TEU makes other considerations, of how the decision to withdraw and to notify that intention is to be made, either not issues of EU law at all or issues on which EU law somehow incorporates domestic constitutional law (with a consequence of non-justiciability on the EU level). (Wienbracke develops this argument.)

I suggest to take more seriously the government’s position expressed by the Attorney General on 17 October: ‘[w]e do not in any event accept that this question is central to the arguments before the court’ (page 64 of the transcript). He accepted that if the claimants are right about the limits of prerogative, then the government must lose even if Article 50 allows for revocation of a notification to withdraw. My point is simply that the claimants must lose even if notification is irrevocable. For reasons why this is the case, I refer the reader to powerful analyses by John Finnis and David Feldman. If they are right about the limits of prerogative powers, then even under EU law there is no duty for the Supreme Court to refer.

No UK court has a legal power to make references to the EU Court related to Brexit

What if the Supreme Court concludes that the case does turn on the issue of revocability of an Article 50 notification and if the judges do not see themselves bound by stipulations made by the parties? It would be difficult to argue that, as a matter of EU law, revocability of Article 50 notifications belongs to the set of issues on which EU law defers to national law. It would then seem that, pursuant to Article 267 TFEU, the Supreme Court would be under a duty to make a reference to the Court of Justice. However, this is too quick.

The UK has a dualist approach to all international law and EU law, at least in principle, is not different (on the idiosyncrasies of the case of effect of EU law in the UK, see my forthcoming LQR article). What this means is that, in itself, the Article 267 duty to make references to the Court of Justice is not a duty UK courts can recognize. There is a need for a gateway in UK law to give that EU law any domestic effect. The general gateway for effects of EU law in UK law is to be found in the European Communities Act 1972. However, as I show in my paper, the ECA clearly does not provide for domestic effect of all EU law.

The question then is whether the ECA provides for domestic effect of a duty to make references on matters of withdrawal from the European Union? The Court of Appeal in the Brexit referendum case of Shindler (see my note published in this blog) suggested that the legislative choice made by Parliament in enacting the ECA 1972 was only to make provision for effect of EU law to the extent the UK remains a member of the club. As Elias LJ noted in his concurring majority judgment: ‘… 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.’ I leave aside the issue that the interpretation of the ECA 1972 in Shindler is much more plausible than (and hard to square with) the one adopted by the High Court in Miller.

What follows from this is that it is at the very least arguable that Parliament did not intend for EU rules, like the duty to make references to the EU Court, to have any effect in UK law in matters of withdrawal from the EU. This would mean that, in UK law, the Supreme Court would have neither duty, nor even a power to make the reference. The reference would not be an option. It would be for the Supreme Court to interpret Article 50 TEU alone and with final authority, just like domestic courts routinely interpret international law.

Mikołaj Barczentewicz, University College, University of Oxford, @MBarczentewicz

(Suggested citation: M. Barczentewicz, ‘The Supreme Court Should Not Refer to the EU Court of Justice on Article 50’, U.K. Const. L. Blog (11th Nov 2016) (available at https://ukconstitutionallaw.org/))

21 comments on “Mikolaj Barczentewicz: The Supreme Court Should Not Refer to the EU Court of Justice on Article 50

  1. Richard Allen
    November 11, 2016

    This article suggests that EU law that is not specifically written in to UK law has no effect. Its a well known principle that the reverse is true. Frankovich was about the reliance on rights granted by a directive that hadn’t even been transposed into Italian law. That case established that individuals can rely on EU law even if it has’t been transposed. It makes perfect sense that rights stemming from EU law should be subject to a ruling of the correct application of Article 50 by the CJEU. The CJEU might agree with the UK court but whether they did or not individuals are entitled to know what the correct ruling is.

  2. sean Feeney
    November 11, 2016

    The question turns on whether the European legislature returned all competence to member states in the Lisbon Treaty in Article 50(1) – for the duration of making a decision to leave to leave the EU.

    Francovich v Italy (1991) C-6/90 does not decide the point; the judgment is prior to the Lisbon treaty.

    • Richard Allen
      November 14, 2016

      I disagree. Frankovich decides the point and as highlighted in the Judgment Van Gend en Loos….

  3. Richard Allen
    November 11, 2016

    When the UK joined the club it bound citizens of the UK to the rules of that club. If the UK wants to leave the EU then citizens of the UK bound by and sometimes adversely affected by those rules are entitled to have those rights addressed under the rules of the club rather than just cut short. What everyone forgets is that individuals have rights that apply under EU law and whether they want to leave the EU or not is of no relevance. The fact that David Davis is currently exercising those rights in a case he has brought at the CJEU is proof. The point that the media seems to ignore is that those who have rights affected by Brexit want them dealt with in an orderly transition governed by Parliament and the rule of law and not just see them axed by Theresa May and her associates with no proper scrutiny. David Greene the lawyer acting for Santos said this outside the court and also said that he and his client voted leave.

  4. Grahame
    November 11, 2016

    There are many aspects of the Article 50 challenge that should not be referred to the EUCJ as they are purely domestic UK constitutional questions.

    However the question about the reversibility or conditionality of an Article 50 notification are outside of the UK’s courts competence and clearly fall to the EUCJ to decide.

    • Richard Allen
      November 11, 2016

      Exactly…

  5. Ana Bobic
    November 11, 2016

    Agreeing completely with Richard’s comment above, even the ECA itself states in its section 2: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are ***without further enactment*** to be given legal effect or used in the United Kingdom shall be recognised and available in law […]” – meaning that the cumbersome requirements of the dualist approach are avoided in order for the UK to comply with the Treaties and the principle of direct effect.

    So the argument that anything that hasn’t been specifically implemented into UK law is not binding the UK is primarily contrary to the ECA itself, and of course to EU law as well.

  6. ObiterJ
    November 11, 2016

    There a need for a practical approach to much of this matter. Let us assume that a reference could NOT be made and that the UKSC ruled on the matter. That ruling would have no binding effect within EU law. Nobody could place any reliance on anything less than a definitive ruling by the CJEU.

  7. Sean Feeney
    November 12, 2016

    The interpretation given to Article 50(1) by the Court of Appeal in Shindler is, effectively, that Article 50(1) is a rule of the club is that all other rules are temporarily suspended while a member state is taking a decision to leave.

    This appears to be logically necessary otherwise the other rules of the club could constitute a substantive bar to a member state ever withdrawing.

    Interestingly, Miller has effectively held that Parliament reached the same conclusion by enacting ECA 1972. Miller effectively interpreted the scope of the 1972 Act as not extending to withdrawal.

    See the long title of the 1972 Act:

    “An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar”.

    Miller effectively, and in my view reasonably, held at [93(1)] that this is not an “An Act to make provision in connection with the making smaller of the European Union to exclude the United Kingdom”.

    The Divisional Court in Miller made no clear finding on whether the decision to leave has already been made (such findings as there are appear to be obiter; see [16] “nothing really turns on this”).

    If the Article 50(1) decision has been taken, the rules of the club are back in play, including the obligation (and domestic duty under ECA 1972) to refer questions on interpretation of the treaties to the CJEU.

    So there are two questions for the Supreme Court if the question of a CJEU reference occurs:

    1. Has the decision to leave been taken (say as a statutory decision in the referendum)?

    2. If the decision to leave has been taken, is this decision in accordance with the “constitutional requirements” of the UK?

    Only the Supreme Court has power under our constitution to settle the last question.

    So the ultimate question for the Supreme Court (if the UK has taken a decision to leave the EU) is:

    Is, under our “constitution requirements”, the Supreme Court itself the final decision maker for the purposes or Article 50(1), or is its role merely to assess the legality of any purported decision to leave?

    • Richard Allen
      November 13, 2016

      There is also the issue of what is the ‘legitimate expectation’ of those who are reliant on the existing rules such as those who may be in the process of trying to have a reference made to the CJEU due to a breach of EU law by the UK. Surely the legitimate expectation should be that if they were subject to EU law when the issue arose they should still be able to have it heard at the CJEU despite of Article 50. This is why triggering Article 50 is not something that should be done without due consideration of all of its impacts and this can only be done by Parliament because Parliament is the only body that can mitigate any harmful effects. Whether or not Article 50 can be reversed has a great deal of bearing on this. Common sense would tell you however that complexities of leaving the U should be dealt with before its triggered otherwise you are up against a ridiculous clock or have to reverse it.

      • Sean Feeney
        November 14, 2016

        It is the decision to leave the EU that is consequential because this domestic decision is recognised under EU law by Article 50. The taking of a domestic decision to withdraw creates an obligation under EU law to notify that decision to the EU because an intention to withdraw has profound consequences for the other members of the EU

        Leaving the EU has a profound effect on fights; remaining in the EU has a profound effect on rights.

        The referendum was a statutory proportionality-balancing exercise authorised by Parliament conferring a statutory power of decision-making (on the Pepper v Hart reading that the 2015 Act provided for the UK’s statutory decision to leave the EU) on a decision-maker with a huge range of specialist rights expertise, including, in particular, expertise on the impacts of withdrawal on the rights of each decision-maker: the electorate specified in the 2015 Act.

        The structure of Article 50 means that the terms of withdrawal can only be known when the terms of the withdrawal agreement are concluded by negotiation.

        Opinions differ on whether notification can be unilaterally revoked (Professor Craig’s view; with which I strongly dissent); however expert opinion is moving to the view that once notification has been given unanimous consensual agreement of the all the member states including the UK and the European Parliament can result in the political decison that the UK remains in the EU.

        I think the issue of revocability is best conceptualised by the non-literal interpretation that the withdrawal agreement can include the UK remaining in the EU and not conceptualise by the concept that notification can be revoked.

        A member state intending to withdraw remaining in the EU by negotiated political consent is a purposive interpretation fulfilling the highest objective of the EU (the Treaties must be interpreted against the the objectives of the EU): that there be a Union.

      • Richard Allen
        November 14, 2016

        Yes but this argument completely failed in court…..its taken apart in the Judgment.

      • Sean Feeney
        November 15, 2016

        The Divisional Court in Miller was placed on notice by the skeleton of Her Majesty’s Attorney General that Article 50 imposes international-law “obligations” by footnote 1, p. 7:

        ““As the Prime Minister has made very clear, if the British people vote to leave, then we will leave. Should that happen, the Government would need to enter into the processes provided for under our international obligations, including those under
        Article 50 of the Treaty on European Union.” (Report stage, HL Hansard, 23 November 2015, col. 475, Minister of State, Foreign and Commonwealth Office, Baroness Anelay of St Johns).”

        Skeletons are, if I remember correctly, incorporated into the judgment by the CPR rule or practice direction on judgments. Judgments are not stand-alone documents.

        Her Majesty’s Attorney General correctly submitted in his skeleton at footnote 10, p. 16, albeit in support of a different point, that:

        “legislation, and the common law, is to be interpreted in accordance with the
        presumption that it was not intended to place the UK in breach of its obligations in international law: R v Lyons [2002] UKHL 44; [2003] 1 AC 976 at §27 per Lord Hoffmann.”

        At [27] of Lyons Lord Hoffman held:

        ‘And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109, 283:

        “I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the Convention]”.’

        28. But for present purposes the important words are “when I am free to do so”. The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.

        Miller is distinguishable from Lyons because the ECA 1972 binds domestic courts to “give effect to interpretations of the [EU] treaty by an international court [the CJEU] “. That public-law “duty” falls on the Court in discharge of its exclusive jurisdiction to interpret the law.

        So, the relevant failure here is not of “this argument of the [defendant]”, but the failure of the Divisional Court in its inquisitorial public-law “duty” to give statutes their “true meaning”.

      • Richard Allen
        November 16, 2016

        Sophistry. Miller is clearly about protecting rights which is why the court went as far back to the Bill of Rights. which not only clarifies the role of Parliament but highlights the fact that individuals must be able to obtain “full Redresse and Remedy”.

      • Richard Allen
        November 14, 2016

        And you fail completely to address the issue of legitimate expectation. In your world view rights are just severed by a higher authority and the individual is powerless. That does not accord with either EU or British Justice.

  8. Dr Michael Tremblay
    November 14, 2016

    … 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.’

    Whether to be bound by a specific set of rules is one thing. Whether one chooses to be bound those rules is a different thing. And not liking a set of rules is something else.

    We are all bound by rules we don’t like, but that doesn’t justify anarchy.

    Therefore, what we need is an analysis of those meta-rules and not the rules themselves. I suspect that meta-rules in law are called constitutions and have the character of the law binding UK law and associated constitutional amendment arising from EU law.

    States broadly exist in a state of anarchy with respect to each other, and choose or not to be constrained by these international norms to some extent at their peril. Is it true that countries have permanent interests, not permanent friends, as Palmerston said? The EU is the best attempt so far to overcome this anarchy and create permanent friends. Those who voted to leave the EU, decided the UK did not need permanent friends and that they would prefer the anarchy to the self-imposed order of the EU itself.

    Article 50 is only a rule. Whether the consequences of the referendum, played out in the context of a referendum, and clearly imperialistic conduct by elected officials should cause alarm as evidence of failure of the meta-rules.

    EU law binds member states against this anarchy. To resolve problems with rules, you need to move the discourse to the meta-rule level. Is the European level the right place? Surely it must be, given the decision of the UK to subordinate its anarchistic objectives in certain respects to EU governance.

    If people can repudiate obligations is such a cavalier way as apparent by the Brexit agenda, we surely would be in a very bad place,.

  9. Pingback: Ronan McCrea: Arguing that Article 50 Notification Is Reversible Involves Risks for the Government | UK Constitutional Law Association

  10. Sean Feeney
    November 16, 2016

    The categorization of Article 50(1) as a meta-rules is correct, but the conclusions drawn are not.

    Article 50(1) can be categorised as a scope-limiting or scope-displacing rule or rule of disapplication.

    The purpose of the EU rule is precisely to avoid the “anarchy” or madness of “Catch 22”: I want to leave the EU because I don’t like the rules: I can’t leave the EU because the rules don’t let me.

    • Richard Allen
      November 16, 2016

      You can leave the EU as long as you do it in a way that satisfies the constitution of the UK. It is the constitution of the UK that you seem to object to. NO….you can’t leave the EU on your own personal terms.

  11. Pingback: Stijn Smismans: About the Revocability of Withdrawal: Why the EU (Law) Interpretation of Article 50 Matters | UK Constitutional Law Association

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