Monday, 10 December 2018

Article 50 – Final judgment of the ECJ

Because of its importance in constitutional law, it is appropriate to widen the scope of this blog (which is usually confined to issues of planning law) to take note of the Final Judgment of the Court of Justice of the European Union (the ECJ, or CJEU) in the case of Wightman and Others v Secretary of State for Exiting the European Union (Case C-621/18).

This was the case referred to the ECJ by the Scottish Court of Session in the teeth of strenuous legal opposition from the UK government (who took their resistance to it all the way to our own Supreme Court – and lost). The judgment of the Full Court was handed down this morning. It answers in clear terms the question that was put to the court as to whether a member country (in this case the UK), having started the process of leaving the EU by means of the procedure set out in Article 50 of the Lisbon Treaty, can withdraw from that process unilaterally, without requiring the consent of the EU itself or of other member states.

The Court has concluded that the United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU, and that such a revocation would have the effect that the United Kingdom remains in the EU under terms that are unchanged as regards its status as a Member State. This means that the UK could remain a member of the EU without losing the valuable rebates and various opt-outs that were negotiated under the premierships of Mrs Thatcher and of John Major respectively. Thus, if we decide to remain in the EU, we shall not have to join the Euro, we will not have to enter the Schengen Area, and will not have to comply with other EU rules from which we are currently exempt.

This possibility exists until a withdrawal agreement concluded between the EU and the Member State has entered into force, or (in the absence of such an agreement having been reached) until the expiry of the two-year period from the date of the notification of the intention to withdraw from the EU (starting from the date of the Article 50 letter written by Theresa May in March 2017, which is due to expire at 23.00 hrs GMT on Friday, 29 March 2019), plus any possible extension of that period that may be agreed, has then expired.

In giving its judgment, however, the Court made it clear that the Article 50 revocation must be decided following “a democratic process in accordance with national constitutional requirements” and that this unequivocal and unconditional decision must be communicated in writing to the European Council. This simply puts the requirements for withdrawal from the Article 50 process on the same legal footing as the requirements for initiating the Article 50 procedure. (As to this, see the judgment of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.)

As the Miller case established, the government cannot rely solely on the Royal Prerogative in doing this, but must seek parliamentary approval. The section in the ‘Withdrawal Act’ specifying that the UK is to leave the EU on 29 March 2019 would also have to be repealed. The two could be conveniently dealt with in a single Act amending the previous Act. Parliamentary approval alone would suffice for the purpose of withdrawing from the Article 50 process, and in view of the shortness of time (barely three months), a decision to introduce a Bill to this effect will need to be made very soon, in the event of the House of Commons rejecting the draft withdrawal agreement that is currently before them.

This, followed by the delivery of a letter unequivocally notifying the Council of the EU of our withdrawal from the Article 50 process, would formally bring to an end the current Brexit process. However, I am not suggesting that this would bring an end to the internal political debate surrounding Brexit, and the government (of whatever complexion, and whoever is then Prime Minister) may well wish to take further steps to bring a final end to the long-running dispute over Brexit, possibly by means of a Referendum or a General Election (or both).

It is important to understand, however, that a Referendum is not a formal legal requirement, either before or after our bringing an end to the current Article 50 process. The Referendum in June 2016 was purely advisory and had no binding legal effect; it was purely a political choice of the Cameron government, and subsequently of Mrs May’s cabinet, to give effect to the outcome of that Referendum by initiating the process of leaving the EU by means of the Article 50 process. As the Supreme Court ruled, there was a legal requirement for parliamentary approval, but that is as far as the formal legal requirements go.

[I promise that my next post will be on a planning law topic!]

UPDATE (18 December 2018): I have taken the opportunity to re-read the ECJ’s judgment of 10 December. Contrary to a statement made recently by ministers, there is nothing to prevent the UK’s withdrawing its Article 50 notice, but then (at any time) submitting a fresh Article 50 letter, if the country subsequently decides that it wishes to resume the Brexit process. The objection to this course of action to which ministers referred was voiced by the European Commission in their submissions to the ECJ but was firmly rejected by the Court. Withdrawal of the UK’s Article 50 notification, thus bringing the current Brexit process to an end, would not prevent the country from reviving its intention to leave the EU, if (after further consideration) it were to decide to do so. Convinced Brexiteers need not therefore have any anxiety that withdrawal from the Article 50 process within the next three months would represent a final and irretrievable end to Brexit; it would not prevent or inhibit in any way a subsequent resumption of the Brexit process. It would, on the other hand, remove the threat of a ‘no-deal’ Brexit on 29 March and the catastrophic economic and logistical crisis that would ensue from such a ‘car-crash’ Brexit.



  1. You say that, but it's not yet 3.30...

  2. I assume that Passer-by was referring to the fact that by the time he wrote his comment, it had become clear that the government was going to cancel tomorrow’s ‘meaningful vote’ (which Theresa May duly announced at 3.30). My note on the ECJ judgment was not, however, dependent on that vote proceeding.

    I was anticipating a decisive Commons vote against the withdrawal agreement tomorrow and, despite the craven postponement of the vote, it still seems very unlikely that Mrs May will be able to get it through the Commons. The EU has made it abundantly clear that they are not prepared to renegotiate the withdrawal agreement, and so the best the government can hope for are certain ‘assurances’ (or ‘re-assurances’) regarding the operation of the Irish backstop, which may be set out in some sort of side letter or could possibly be incorporated in the political statement that accompanies the withdrawal agreement. Any such ‘assurances’ or ‘re-assurances’ would not, however, have any legal effect, and so would therefore be no more than a pious expression of hope. Neither the Tory Brexiteers nor the DUP will be satisfied with this and so, when it eventually comes back to the Commons, the withdrawal agreement is still likely to be rejected.

    The important point, when this happens, is that there is now a clear alternative to ‘crashing out’ of the EU with no deal, and this would be the revocation of the UK’s Article 50 notice before 29 March. As I have indicated, this will not in itself be a political solution to the Brexit dilemma, but it will have the effect of stopping the clock while the government, MPs, and ultimately the electorate, sort out where they finally want to go on Brexit. As I indicated earlier, this might well involve a Referendum, a General Election, or both.