The blog of ObiterJ has responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice. 'The life of the law has not been logic; it has been experience.
In Wightman and others v Secretary of State for Exiting the EU, the Court of Justice of the EU (CJEU) has held that notification under Article 50 of the Treaty on European Union is unilaterally revocable.
The UK government resisted this action at all stages. The Prime Minister has also consistently maintained that the Article 50 notification will not be withdrawn.
The court's Advocate General expressed his non-binding opinion to the same effect - see previous post.
The CJEU judgment answers a preliminary reference made by the Inner House of Scotland's Court of Session. The matter now returns to the Scottish court which must give its judgment in the light of EU law as stated by the CJEU.
The decision of the Court of Session to make the reference is HERE. Note para 3:
Following the Motion passed on 4 December in the House of Commons - see previous post - the Government has published the Attorney General’s legal advice to Cabinet on the Protocol on Ireland/Northern Ireland and made this available to Parliament. This is the full, final advice that the Attorney General provided to Cabinet on 14 November on the legal effect of the Withdrawal Agreement. The release of this advice does not set a precedent for any future release of Law Officers’ advice.
This document has been made available to Parliament through a Written Ministerial Statement from the Attorney General, available here
The Government has published a collection of material to support public and parliamentary assessment of the deal, including a document setting out the Government’s legal position on the proposed Withdrawal Agreement. These documents are available here.
On 4 December the government was held to be in contempt of the House of Commons over the failure to disclose the full withdrawal agreement legal advice given by the Attorney General to the Cabinet - previous post.
The government's timetable motion for the Brexit Withdrawal Agreement debate was approved but with a significant amendment put forward by Mr Dominic Grieve QC MP. In the evening, the debate on the Withdrawal Agreement and Political Declaration commenced.
4 December was also the day on which the Advocate General at the Court of Justice of the EU gave his opinion that the notification under Article 50 TEU could, with certain conditions, be unilaterally withdrawn. The court has yet to give judgment and the AG opinion is not binding - previous post.
1) Timetable and the Grieve amendment:
The House of Commons agreed by 321 votes to 299 a timetable for the debate on the Withdrawal Agreement and Political Declaration. Under the European Union (Withdrawal) Act 2018 section 13, both of those require approval by the House of Commons.
Debate on approval of the withdrawal agreement would take place on Tuesday 4 December, Wednesday 5 December, Thursday 6 December, Monday 10 December and Tuesday 11 December.
The Withdrawal Act section 13 sets out what is to happen in the event that the withdrawal agreement is NOT approved on 11 December. Mr Dominic Grieve QC MP and others were concerned that any motions brought forward by the government should be amendable since, as Mr Hilary Benn MP put it it, " ... it is essential that the House of Commons has the opportunity, if the deal is voted down next Tuesday, to give itself a voice and to express a view about what happens next."
The House agreed and that is reflected in final paragraph of the motion in which the House agreed that provisions of Standing Order No. 24B (Amendments to motions to consider specified matters) will not apply in respect of any motion tabled by a Minister of the Crown pursuant to any provision of section 13 of the European Union (Withdrawal) Act 2018.
2) Withdrawal Agreement debate opened:
After agreeing the timetable, the House commenced the debate on the Withdrawal Agreement.
The Prime Minister opened the debate by moving that the Withdrawal Agreement and Political Declaration be agreed. Unhappiness with the deal was clearly widespread and, in particular, with the Ireland / Northern Ireland Protocol ("backstop") even though no deal would have been possible without including backstop arrangements. The backstop will not come into force until the end of the transition period and, even then, the UK/EU plan is that agreement on the future relationship will then be in place so that the backstop is not required.
There are of course many reasons favouring approval of the deal. High on that list has to be the point that a no deal Brexit on 29 March 2019 is avoided.
MPs might also do well to consider that there is no obvious appetite in the EU to either re-write the Withdrawal Agreement or to negotiate a fresh withdrawal agreement. Realistically, the deal as it stands is the only one on the table and EU preparedness for a no deal Brexit is well advanced.
Advocate General Campos Sánchez-Bordona has concluded that notification under Article 50 of the Treaty on European Union (TEU) may be unilaterally withdrawn by the member State which gave the notice. Please read the court's announcement (pdf) which is available via the CJEU website.
The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
Note the conditions and limits proposed by the AG. First, like the notification of the intention to withdraw, the unilateral revocation must be notified by a formal act to the European Council. Secondly, it must respect national constitutional requirements. If, as is the case in the UK, prior parliamentary authorisation is required for the notification of the intention to withdraw, it is logical that the revocation of that notification also requires parliamentary approval. There is also a temporal limit on the possibility of revocation, since revocation is possible only within the two-year period that begins when the intention to withdraw is notified. The principles of good faith and sincere cooperation must also be observed, in order to prevent abuse of the procedure laid down in Article 50 TEU.
Mr Donald Tusk, the President of the European Council, made a statement at the G20 meeting held in Argentina - see European Council 30 November. He said, "Many leaders will certainly have questions about Brexit. Therefore, let me say this. The European Union has just agreed an orderly divorce with the United Kingdom. A few days before the vote in the House of Commons, it is becoming more and more clear that this deal is the best possible, in fact, the only possible one. If this deal is rejected in the Commons, we are left with, as was already stressed a few weeks ago by Prime Minister May an alternative: "no deal; or no Brexit at all." I want to reassure you that the EU is prepared for every scenario." Food for thought for MPs in the forthcoming House of Commons debate and vote. The vote is scheduled for 11 December.
On Tuesday 27 November, the Court of Justice of the EU heard argument in the reference from Scotland's Court of Session. The court's Advocate -General will deliver his opinion on 4 December. The opinion is not legally binding on the court but such opinions are usually adopted. I covered the hearing in this previous post and the answer may yet prove to be important if the House of Commons decides to reject the draft Withdrawal Agreement / Political Declaration.
Elections for the European Parliament (EP) will be held over 23-26 May 2019. This is likely to be of passing interest in the UK given that Brexit is planned to take place on 29 March 2019. After that, the UK will not participate in elections and democratic representation at the EP will cease. The 73 Members of the European Parliament will benefit from final payments and pensions. The loss of democratic representation is a concern given that the UK will continue to be bound by new EU legislation for the duration of the transition period. Turnout in the UK for the EP election in 2014 was 35.6%. The highest turnout since 1979 was in 2004 when it was 38.52%. Across Europe, the percentage turnouts are shown HERE.
The President of the European Commission - Mr Jean Claude Juncker - retires in 2019 and is likely to be replaced through the so-called "Spitzenkandidaten" (lead candidate) system. The Treaty on European Union Article 17(7) requires the European Council, acting by qualified majority, to nominate a Commission President for the European Parliament’s approval, while taking into account the results of the European Parliament election.
The “Spitzenkandidat” procedure is not mentioned in the EU’s treaty. When it was used for the first time in 2014, it was primarily an agreement between EU leaders in the European Council, the European Parliament and European political parties on how to interpret the wording in the treaties. The Spitzenkandidat procedure hands the Commission Presidency to the “lead candidate” from the European political party winning the most seats in the European Parliament. This was the case in 2014, when the European People’s Party’s lead candidate Jean-Claude Juncker was appointed Commission President. A European political party is a political party operating on European level, which could be funded by the European Union, and which is made up of national parties based in the member states.
The UK prides itself on adherence to treaty obligations but at least one MP has raised a question about whether the UK could ever get out of the entire Withdrawal Agreement. Termination of treaties can be a complex question and is provided for in the Vienna Convention on the Law of Treaties . It may be achieved in various ways:
by applying a specific provision in the treaty
material breach such that the other party (or parties) regard the treaty as ended
Supervening impossibility of performance
Fundamental change of circumstances.
The withdrawal agreement does not contain a specific provision for termination. International law then appears to be that a State may only denounce or withdraw from a treaty where the parties intended to admit such a possibility or where a right to withdraw may be implied by the nature of the treaty. A tentative view is that difficulties will arise if the UK were to seek to withdraw once the withdrawal agreement has taken effect. It is worth noting however that the withdrawal agreement contains a provision to bring the Ireland / Northern Ireland Protocol to an end though this has to be by agreement. The plan is to never require the Protocol ("backstop") because an agreement on the future relationship would be negotiated so as to take effect at the end of the transition period.
Chapter 5 of the white paper sets out Procedures for approval and implementation of the withdrawal agreement and framework for the future relationship.
There are two statutory procedures to be followed under - (1) section 13 of the European Union (Withdrawal) Act 2018 and (2) the Constitutional Reform and Governance Act 2010 (CRAG). If "the deal" survives both processes then the government will be able to proceed to ratifying the Withdrawal Agreement at which point it becomes binding on the UK in international law.
In case anyone is wondering, the European Union Act 2011 was largely repealed on 4 July 2018 and will be completely gone on Exit Day - see this Commencement Order. The 2011 Act, inter alia, imposed a requirement for a referendum to be held under certain circumstances.
The European Union (Withdrawal Agreement) Bill has yet to be introduced to Parliament.
In the present political climate it is unlikely that the Withdrawal Agreement will receive approval from the House of Commons. This can be seen in the debate on Monday 26 November where MPs on all sides expressed unhappiness with the agreement / declaration. The political cogs and wheels are in operation and much might change in the time leading up to the vote which, as things stand, is scheduled for 11 December.
Article 50 TEU is silent on the question of whether notification may be withdrawn and the question of whether unilateral revocation is permissible has been a topic of keen debate throughout the Brexit process. Two previous posts looked at the arguments for and against as put forward by various legal commentators - see Law and Lawyers 23 July 2017 and Law and Lawyers 20 October 2017.
Having a definitive answer from the CJEU will inform MPs over the forthcoming weeks as they proceed to vote on whether to approve the Withdrawal Agreement / Political Declaration agreed on 25 November by Prime Minister Theresa May MP with the European Council.
As shown by the House of Commons debate of 26 November, it seems likely that MPs will reject the deal. The government will press hard to obtain approval and the views of MPs may change before the vote on 11 December.
Although the UK government strenuously resisted the action both in the Scottish Court of Session and in the Supreme Court, it has consistently stated that it will not revoke the notification given to the EU on 29 March 2017.