Public Law

It is said that a week is a long time in politics, and this week already feels longer than most. The day began with news from Luxembourg that the Court of Justice of the European Union (CJEU) has ruled that the UK can cancel its “Article 50” notice and decide to remain in the EU without asking other EU countries for agreement. We previously blogged on the case, which has gradually attracted more and more media attention, here and here. We also produced a piece for Scottish Legal News on last week’s Advocate General decision, which was along similar lines (though not identical) to today’s ruling of the full Court.

At the time of writing there are reports that the “meaningful vote” on whether to accept the Prime Minister’s Brexit deal with the EU, scheduled to take place tomorrow in the House of Commons, will be delayed. It is unclear whether that is directly related to the CJEU judgment, but the ruling would certainly have raised hopes among some MPs that voting against the deal would ultimately result in the UK staying in the EU.

The CJEU’s ruling makes clear that revoking an Article 50 notice would “confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State”, which suggests that the Member State would not have to give up any opt-outs in order to revoke the notice (which in the UK’s case would include opt-outs in relation to the Euro, the Schengen area and a number of other issues).

The ruling is subject to the condition that any decision to revoke must be in accordance with the Member State’s constitutional requirements, which for the UK would mean approval by Parliament (as the Miller case established was required for submitting the Article 50 notice in the first place).

The revocation must also be made in an “unequivocal and unconditional manner”, which may suggest that it could not be used simply so the UK could reset the clock by revoking the current notice and issuing a new one: the Court did not adopt the Advocate General’s condition that the revocation should not involve “an abusive practice”, but the “unequivocal and unconditional” formulation may in practice amount to the same thing.

As thing stand, however, today’s opinion does not change the fact that the default position remains that the UK will still leave the EU on 29 March 2019. To actually “cancel” Brexit would require a government minded to do so, and senior Ministers have already reiterated that the current Government has no such intention. In addition, “exit day” is explicitly defined as 11pm on 29th March 2019 in section 20(1) of the European Union (Withdrawal) Act 2018. This could be changed (i.e. delayed) by regulations, which would have to be made by the Government and approved by both Houses of Parliament, but to actually cancel Brexit as a matter of UK domestic law would require MPs and peers to pass legislation repealing the 2018 Act.

The case will now return to the Court of Session to issue a declarator on the status of Article 50, which will effectively just be a final procedural step given that the action’s sole purpose was to get the answer the CJEU has now provided.

Finally, watch this space for more Brexit-related news from the courts this week, as on Thursday the UK Supreme Court is due to rule on whether the Scottish Parliament has the power to pass its own Brexit legislation, a move challenged by UK law officers.

Jamie Dunne

Jamie Dunne

Jamie has a broad range of experience in government law, regulatory and competition matters, including advising public bodies, regulators and regulated entities on their powers and duties, procurement matters (both contentious and non-contentious) and information law.
Jamie Dunne