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Home / News and Insights / Blogs / Public Law / 59: It doesn’t have to be that way

In an interesting development that brings back into focus the constitutional (including devolutionary) forces in play as the Brexit negotiations enter their crucial phase, the Scottish Court of Session has refused to give the UK government permission to appeal to the UK Supreme Court against its September decision to refer to the European Court of Justice (CJEU) a vital question on the interpretation of Article 50 of the Treaty.

The main question before the Scottish Court was whether EU law permits a Member State which has notified the European Council of its intention to leave the European Union, to revoke that notice unilaterally. If so, the Scottish Court asked, would this be subject to any conditions and what effect would it have on the Member State remaining within the Union? The CJEU is the only competent court able to rule authoritatively on the meaning of the EU Treaty. Subject to any appeal, it will hear the case in late November.

How the CJEU decides and the timing of its decision are of crucial importance in the Brexit endgame.

Rejecting arguments by the UK government, the Scottish court said that it was neither hypothetical or premature to ask whether it is legally permissible for the UK to revoke the notification and to remain in the EU. The Prime Minister had given notice on 29 March 2017. With the two year time limit prescribed by Article 50, absent any supervening events, the UK would be leaving the EU in six months’ time (as of September). The Court had been asked the question ‘Can the notification be unilaterally withdrawn?’ The question was germane to the nature of the choices that might be available to the MSPs and MPs who brought the case when they have to decide on whether the Government’s Withdrawal Agreement with the EU is acceptable. It could only be answered definitively by the CJEU. In consequence the referral was both justified and necessary.

Moreover a declaration by the Scottish Court, suitably advised by the CJEU, would not, it decided, breach the boundaries of Parliamentary privilege by trespassing on the Government’s approach to Brexit. Nothing said in Parliament was criticised or called into question by the referral. A decision by the CJEU would not fetter or interfere with the legislature. There was no challenge to freedom of speech in Parliament or offence to its sovereignty.

It is now open to the Government to apply direct to the Supreme Court for permission to appeal to it, in short side stepping the Scottish Court’s decision. Alternatively, it may cut its losses and prepare its case before the CJEU.

As an illustration of the constitutional tension between the executive (the Government), the legislature (Parliament) and the judiciary (the UK’s Courts) the case is fascinating in its own right. It can even be seen as the Government seeking to mute the ability of Parliament to decide on a different route through the Brexit crisis, facilitated and determined by the constitutional courts, indeed the senior court of Scotland as prime mover.

For the Government it blows a hole through their consistent position that having triggered Brexit, the UK leaves the Union on 29 March either with or without an Agreement on the terms of withdrawal and the future relationship. That is even if such an Agreement conceded the need for a transitional or implementation period.

Politically, it is a dangerous development. As things stand, under the terms of the Government’s European Union (Withdrawal) Act 2018, Members of Parliament must vote (no later than early next year) on whether to agree to the ratification of the Agreement. A vote against ratification will mean that the UK will leave the EU on 29 March without a deal. The Government has now reached a draft Agreement that satisfies the EU, but early indications are that, with the cross-Party opposing factions in Parliament, a vote against ratification is looking an increasingly likely possibility. If the Prime Minister concedes before 21 January next year that no agreement in principle can be reached, or no announcement is made that there is such agreement, the Withdrawal Act requires the Government to inform Parliament how it intends to proceed.

If, the Court of Session, guided by the CJEU, determines that another leally permissible option is open to MPs, there is the genuine potential for MPs, regardless of the constraints the Government might try to impose on the terms of the resolutions to approve the Agreement, to find a third way, namely to require the revoking of the notification (with the UK consequently remaining in the EU). The political consequences of how this might affect the voting of individual MPs who find the terms of an Agreement unacceptable as drafted, but who are currently presented with an Armageddon option of voting for it or for crashing out of the EU, are profound. The Government would come under enormous pressure to acknowledge that a further option exists or risk losing crucial votes to support an unpalatable Agreement which is in effect, the only deal on offer.

A declaration by the ECJ through the Scottish court that the UK may unilaterally revoke the Article 50 notification, constitutes a dangerous and unlooked for risk to the Government’s control of the Brexit endgame in Parliament.

Enjoying the blog? Why not try the Brexit Blog playlist on Spotify.

‘It doesn’t have to be that way.
What we had should never have ended.
I’ll be dropping by today
‘Cause we could easily get it together tonight’
(Jim Croce, It Doesn’t Have To Be That Way)

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