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Well-placed sources have reported to the Guardian that the Government’s lawyers will argue before the Supreme Court that notice triggering Article 50 can be revoked if the UK changes its mind about leaving the EU before its departure from the Union takes place.
This marks a significant change from the strategy adopted before the High Court where lawyers for all sides agreed that once notification under Article 50 was given, it could not be revoked.
If true, this change of tack will significantly improve the Government’s chances of winning its appeal. Central to the decision of the High Court was the idea that triggering Article 50 required Parliamentary approval as, being irreversible, it inevitably led to the effective repeal of the European Communities Act 1972 which makes EU law rights and duties part of UK law.
If such notification can be withdrawn at a later stage, then the initial triggering of Article 50 need not necessarily lead to the effective repeal of the the European Communities Act. In these circumstances, it is much easier for the Supreme Court to conclude that giving notification under Article 50 does not involve an illegal use of the Government’s power to conduct foreign affairs so as to undercut Acts of Parliament.
However, going down this route involves significant dangers for the Government. EU legal experts disagree about whether notification under Article 50 can be withdrawn. One figure involved in its drafting, argues that the text of the Article contains no prohibition on withdrawing notification. On the other hand, other experts note that the two year time frame set out in the Article is intended to place pressure on the departing Member State.
Allowing a Member State to withdraw notification would undercut the point of having such a strict timetable. In addition it risks abuse of the procedure through which a state could give notification, withdraw the notification and then set the clock back to zero by giving notification once more.
One matter is clear, however. Article 50 is a provision of EU law, not UK law. This means that the only body empowered to definitively interpret it is the European Court of Justice in Luxembourg. Under Article 267 of the Treaty, national courts that need to interpret provisions of EU law should make a reference to the Court of Justice in order to clarify the meaning of such provisions.
National Supreme Courts are obliged to make such references. The only circumstance when such a reference is not necessary is when the matter is considered to be what is called “acte clair” (see Case-283/81 CILFIT). This is when the Court of Justice has ruled so often and so clearly on a particular matter that the national court can apply the relevant EU rules itself without guidance.
As this is the first time Article 50 has been used, it is obvious that “acte clair” does not apply in this instance. The Supreme Court is obliged, as a matter of EU law to refer this question to the Luxembourg Court.
Writing on this blog Mikołaj Barczentewicz argues that the Supreme Court ought not to make a reference to Luxembourg on the basis that:
“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.”
This mischaracterises what a reference would involve. Certainly, given the dualist nature of the British legal system and the sovereignty of Parliament , the UK authorities (either the Government or Parliament depending on the outcome of the Miller case) could decide to leave the EU unilaterally by repudiating the Treaties and/or repealing the ECA at a time of their choosing. However, they have chosen to abide by the obligation they signed upto in the the Lisbon Treaty by using the Article 50 process, not least because unilateral action would result in a very hard and disruptive Brexit.
Were the Supreme Court to make a reference in order to obtain a definitive view on the meaning of Article 50, this would not be subjecting the Brexit process to EU law. A reference would be made because the correct interpretation of a provision of EU law (Article 50) was a question of fact that needed to be resolved in order for the Supreme Court to decide whether, in this instance, UK domestic constitutional law permits the use of prerogative powers or requires the involvement of Parliament. It cannot be that the Supreme Court lacks the power to inform itself as to a relevant matter of fact in relation to litigation before it because that litigation relates to the UK’s departure from the EU.
That said, there is no way of forcing the Supreme Court to refer the matter to Luxembourg if it does not wish to do so. However, the justices may well want to avoid a scenario where they make a ruling on the basis that notification under Article 50 can be revoked only to find out through a ruling from Luxembourg later on, that it cannot.
There are several drawbacks to making a reference. It would lengthen proceedings considerably. It usually takes over a year to get an answer to an Article 267 reference from the Court of Justice, though the Court has a procedure to allow it to give rulings much more quickly in urgent cases.
In addition, the “optics” may be problematic. One can only imagine the reaction of sections of the British media to an invitation to European judges from their British counterparts to rule on elements of the Brexit process.
Nevertheless, there is no doubt that Article 50 is a matter of EU law and even the most hardened Brexiteer must recognise that it is for the EU courts to interpret what EU law means. Contesting the issue of the revocability of Article 50 before the Supreme Court makes the correct interpretation of a matter of EU law a key question of fact that the Court will have to resolved. As the European Court of Justice is the only body that can make definitive rulings on this factual issue, should the Government decide to contest this issue, it will be opening the door to involving the Luxembourg Court.
Ronan McCrea is a Senior Lecturer in Law at University College London.
(Suggested citation: R. McCrea, ‘Arguing that Article 50 Notification Is Reversible Involves Risks for the Government’, U.K. Const. L. Blog (15th Nov 2016) (available at https://ukconstitutionallaw.org/))