Another Article 50 court case (and Article 127): why we should take notice

Just as the Supreme Court Article 50 hearings finished, another two potential cases appeared which could affect the government’s Brexit negotiating strategy, both of which address significant legal uncertainties remaining.

The first is a case developed by Jolyon Maugham QC that was crowdfunded in 48 hours last weekend. It seeks to resolve two legal uncertainties, i) whether Article 50 is indeed irrevocable (something that was not an issue in the recent Supreme Court case), and ii) whether the UK would automatically withdraw from the single market or European Economic Area (EEA) when Article 50 is triggered. The separate EEA Agreement was ratified by the UK in the EEA Act 1993. The case is being filed in the Irish courts, asking them to refer it directly to the European Court of Justice (ECJ), a process of at least 9 months.

Article 50 does not indicate whether or not its application is irrevocable, so it may be revocable following customary international law. Not surprisingly, David Davis sounded unsure when asked by the Brexit Select Committee! Only the ECJ can decide as the final arbiter of the EU treaties. If Article 50 is found to be revocable then we have a unilateral legal basis for implementing any second referendum decision to remain in the EU after the deal is agreed.

The second case is being brought by British Influence, a pro single market think tank, which is still seeking funding for a judicial review (Article127.org) in the UK High Court to address the same issue about the EEA Agreement. If successful, this would probably also be referred to the ECJ who could consider both cases together.

Automatic withdrawal from the EEA depends on whether the UK is a member of the of the EEA agreement in its own right or as a result of EU membership (the EEA Agreement can be read both ways). If the former, then Article 50 notification is irrelevant and the UK must withdraw under Article 127 of the EEA agreement giving 12 months notice – a separate process. If the latter, then Article 50 notification is enough for withdrawal.

The government has no mandate to withdraw from the single market as the EEA was not mentioned in the referendum question and as the Conservative 2015 manifesto promised to ‘safeguard British interests in the single market’. So parliamentarians are justified in opposing the repeal of the EEA Act. Furthermore, the government might not be able to use the Parliament Act because it was not a manifesto commitment (more work for the lawyers?).

I do not understand how the government can be serious about its negotiating strategy without resolving these two issues, both of which should strengthen its hand. The headlong rush to trigger Article 50 in March is driven only by a timetable that would allow the PM to say she has ‘completed Brexit’ in the 2020 General Election whatever the cost.

 

* Richard Robinson was the PPC in East Hampshire in May 2015 and currently divides his time between there and Vienna.

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13 Comments

  • Little Jackie Paper 19th Dec '16 - 11:17am

    ‘the EEA Agreement can be read both ways’

    Is it just me or does this seem to be cropping up over and over again – agreements and the like that have zero clarity and which can be read in any number of ways?

    Not exactly a ringing endorsement of the people who write, and indeed sign, these things.

  • The reason these agreements are unclear is because they were never designed to be invoked. Membership of the EU was supposed to be forever with ever greater union. It’s also the reason the transition from a trade bock to a political union on 1/11/93 was not put to the electorate and why I’m extremely pleased that enough people finally put a stop to it.

  • Glenn: but have they put a stop to it, in view of the mess the referendum has produced it seems to me that at best, all that has happened, is everything is just being reviewed. Does not mean there will be any significant changes? In the end probably not.

  • Plain Speaker 19th Dec '16 - 2:59pm

    Can art 50 be revoked once invoked? There are a number of issues:
    [1] Can it be revoked by the unilateral action of the UK alone?
    [2] Can it be revoked by mutual agreement with the European Council ? {by QMV or by unanimous vote?}
    [3] What role would the Commission and/or the EUParl play in any decision to revoke?
    [4] Within what timescale/point of negotiation – presumably before the guillotine?
    [5] If art 50 can be revoked, what are implications for acquired rights?

    Will the UK continue in the EEA if it leaves the EU? The issues are
    [1] The EEA agreement purports to be between the EU and EFTA is it?
    [2] Each of the EU states ratified the agreement separately- does that ratification stand?
    [3] Switzerland (an EFTA state) is not part of the EEA – implies the agreement is not between the EU and EFTA?
    [4] The EEA agreement was ratified by Norway, Iceland and Lichtenstein separately-not as part of EFTA?

  • Tony Dawson 19th Dec '16 - 5:12pm

    What is seriously worrying is that all these legal cases are being brought by concerned individuals or groups. What have our politicians (including Liberal Democrats) been doing here?

  • Peter Martin 19th Dec '16 - 7:41pm

    have a unilateral legal basis for implementing any second referendum decision to remain in the EU after the deal is agreed

    Just on a point of information: The June 2016 referendum was the second referendum on Europe. The first was in 1975. 41 years ago!

    So you’re saying you want a third referendum? When? How about sometime in 2057?

  • David Pearce 20th Dec '16 - 8:35am

    Tony Dawson,
    Its hard to tell why it is the public rather than politicians making legal challenges, but politicians just got burned by involving the public in their decisions. So maybe they dont fancy asking anyone else.

    The referendum delivered the wrong result and right now the conservatives are working hard to roll it back. Part of that is to delay, which obviously involves not initiating legal moves expeditiously. Part of that is to avoid explaining to parliament (and thus us) what they are up to.

    Even if we assume good faith by the conservatives, they are finding that leaving the EU is economically and politically impossible. On the political front, the game plan was to get a vote to remain. On the practical implementation front, the difficulties are growing rather than being solved.

    May’s challenge is to satisfy those who voted Leave, but to avoid leaving. Increasingly there is talk that the vote was to leave, and literally we can leave, yet remain in effect a member by continuing to belong to the various parts of the EU. That solves the economic problem, but it also solves the political problem if this can be spun as one step in ‘getting on with Brexit’.

    Various outside bodies, the Scots, the Irish, Leave, concerned citizens, are pushing the government faster or slower than it wants to go. The sweet point for the government would be in 2020 to have shown willing by some sort of departure, yet for practical purposes nothing to have changed.

  • “The sweet point for the government would be in 2020 to have shown willing by some sort of departure, yet for practical purposes nothing to have changed ”

    If this is the situation at the 2020 election expect to see a much higher number of UKIP MPs elected to parliament,the people are not stupid and they will fully realise that their referendum wishes have not been listened to.
    If a government puts a referendum to the people and tells them it will be acted on ,then that is what people expect, anything less will not do and they will take their revenge on the party that did not carry out their promise.

  • @alans – You are making a major assumption about UKIP – now in total disarray – would get increased numbers of MPs elected to Parliament.

    Also, from a party political viewpoint, if a Conservative government makes a promise to the electorate which it had no guarantee it could deliver on, why should we care if the Conservatives lose seats as a result? The views of UKIP voters are basically diametrically opposite those of LibDem voters, so it is wildly unlikely that we’ll see an exodus of LibDem voters who decide to vote UKIP. 🙂

  • @Glenn – The EU/ECs did not transition into being a “political union” on 1/11/1993. Nor indeed was it just a “trade bloc” before that date.

  • Firstly I have to confess to not being a Libdem supporter,I suppose I would best be described as a floating voter having voted tory at the two most recent GEs and previous to those voted Labour and even Libdem on more than one occasion .
    At the referendum on EU membership I voted Remain mainly because I did not wish to see the divisiveness that is now occurring in the country. I always believed that we should have held refendums at at each major EU treaty change,and think that the failure to hold these had an effect on the recent EU ref. result.
    However,now we have had the referendum I believe HMG should now act on the result,albeit after a a vote in parliament.
    @Paul ,you say UKIP is in disarray but by the time of the next GE there could a very different political landscape,if UKIP do get their act together, who knows?
    I stand by my previous point that the voters will remember which party carried out their wishes as per the EU ref .result

  • Automatic withdrawal from the EEA depends on whether the UK is a member of the of the EEA agreement in its own right or as a result of EU membership (the EEA Agreement can be read both ways).
    Strange, I found the EEA Agreement to be very clear.
    Firstly, only members of the EFTA and EU can Apply to become members of the “Single Market”, however, they participate/sign the EEA Agreement as sovereign nation states and become one of the “Contracting Parties” to the Agreement. Thus the ten countries that formed the 2004 enlargement of the EU, all had to individually and explicitly apply to join the EEA.
    Secondly, the EEA Agreement makes no mention of and thus places no restrictions on the on-going EFTA and EU membership status of ‘Contracting Parties’.

    Thus as far as I can see, the only people who would want to establish a hard linkage between EU membership and EEA membership are those who desperately want a’hard’ Brexit. For any one else I suggest it is sufficient to announce the intent (ie. leave the EU, remain in the EEA) and let those who object do the legal legwork.

    Article 50 does not indicate whether or not its application is irrevocable
    A similar logic applies here. However, I suggest we look at the typical UK employment contract and specifically the notice and termination clauses and ask the question: is the formal notice of termination irrevocable? The answer is certainly: Yes but with the agreement of both sides much is possible… Hence, only a fool would give notice of termination and then during the notice period unilaterally decide to rescind the notice and expect the employer to simply accept their new decision, even though no one could point to any contract provision that would require the employer to accept such a change of heart by the employee.

    Thus going back to Article 50, the first question has to be where is the provision that forces the EU to accept any attempt by the UK to rescind its notice of withdrawal? The second question (which those seeking a final opportunity to remain should be asking) is: if the UK does invoke Article 50, is it reasonable to expect the EU members at some stage during the exit negotiations to simply accept the UK has had a change of heart and thus come to an agreement that effectively terminates the Article 50 process and restores the UK to full and unconditional membership?

  • Sam Troudeau 13th Jan '17 - 11:37am

    What UK discussants need to understand is that EU law does not function based on common law principles, but based on the principles of interpreting statutory law. In statutory law there are no rights that are not explicitly written in the statutes. The law does not develop based on interpretation, but based on written statutes passed by the parliament. In addition, EU law is explicitly outside customary international law: it is an autonomous legal order and the ECJ decides all issues under EU treaties, like the interpretation of Article 50. There are no provisions for revoking Article 50 in EU law. Therefore, the court would need to use the principle of interpreting the article according to its telos. Article 50 states that EU treaties automatically cease to apply after two years unless all parties agree to extend the negotiating process. Secondly, the article states that if the withdrawing country wants to re-join the EU, it must do so according to the standard procedure. Therefore, the telos of the article clearly is ‘out is out’. For anybody coming from the statutory legal tradition the case is rather simple: article 50 is irrevocable.

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