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‘The Brexit decision’: Posts on Verfassungsblog and the European Law Blog

It has been a tumultuous month in the ongoing ‘Brexit’ drama. The UK High Court’s decision in R(Miller) v Secretary of State for Exiting the EU (‘the Brexit decision’) has provoked controversy. This seems like it will only grow stronger once the UK Supreme Court appeal starts on 5 December. In this time,  I have had relevant posts published on the Verfassungsblog on 2 November: “Why the Member State should clarify their constitutional requirements for withdrawing from the EU”  and the European Law Blog on 14 November: “Referring Brexit to the Court of Justice of the European Union: Why revoking an Article 50 notice should be left to the United Kingdom”.  The Verfassungsblog post itself was a cross-post with the EUI’s own Constitutional and Politics Working Group blog. The full text of both blogs is below. I welcome comments on the original platforms and/or this post.

Today, I have had the privilege of the EUI Law Department publishing a Working Paper that I have written on protecting European citizens and citizenship after Brexit. I intend to publish a short post tomorrow outlining a key idea from the paper to coincide with its publication on the Social Science Research Network (SSRN).

I. Why all the Member States should clarify their constitutional requirements for withdrawing from the EU (Verfassungsblog, 2 November 2016)

The current legal challenge to the UK government’s constitutional authority to trigger Article 50 TEU in Miller v. Secretary of State for Exiting the European Union is the supporting act to the main event political drama of Brexit. Summaries of proceedings in the case can be found on the UK Constitutional Law Association Blog (Day oneDay twoDay three) and the full transcripts of proceedings are available on the UK judiciary’s website. This post does not provide a case note. Instead, zooming out from the constitutional uncertainty engulfing Brexit, it calls upon the other Member States to provide clarity on the procedural and substantive requirements for withdrawing from the European Union in their own constitutional orders. Despite the procedure for withdrawal being defined at the Union level by the creation of Article 50 at the Treaty of Lisbon, there has been no concurrent clarification of the necessary ‘constitutional requirements’ at the level of the Member States. This seems to be explicable on the basis that nobody – not even the drafters of the clause – ever thought Article 50 would be triggered. If the lack of such procedures when membership is uncontested seems careless then their absence when the question of membership is being directly posed to the polity looks more like political negligence. To elaborate further upon the analogy of Article 50 as a ‘safety valve’, the argument here is that such a device should only be used in ‘cases of emergency’. The procedure for such emergency use should be clearly defined before the situation arises, in addition to the reasons why this use is justified.

I will start with the ‘how’ question of the procedural requirements. The UK’s withdrawal procedure was established in an ad hoc manner. The Prime Minister David Cameron made a manifesto promise to hold a referendum on the UK’s membership of the EU, a commitment that was first outlined in a speech in 2013. Following a majority victory in the 2015 General Election, which surprised even the Conservative Party, the UK Parliament passed the European Union Referendum Act 2015 to establish the procedure for making this decision. However, even before the referendum the debate had begun over whether this referendum was legally binding or only ‘consultative’. This line of argument has been pursued through into the submissions by the claimants before the High Court that a decision to trigger Article 50 is not possible without the involvement of Parliament. This lack of certainty is arguably predicated on complacency from political actors who never thought they would have to follow through with the Article 50 process. This is evidenced by David Cameron’s unfulfilled claim that he would trigger the clause the day after a leave vote; instead, he resigned as Prime Minister and bequeathed the legal and political Gordian’s Knot to his successor.

The ad hocism of Brexit has led to constitutional uncertainty. This could have been avoided if with the creation of Article 50 the Member States had concurrently determined how the clause would be triggered in their national constitutional orders. Although withdrawal from the Union should not be equated with secession from a state, the Quebec experience in Canada is instructive. The question of the procedure for secession was referred to the Supreme Court before a proposed third independence referendum in 1996, thus providing a clear legal answer for the political process to follow. The result of this was the promulgation of the ‘Clarity Act’ in 2000. This constitutional law provides an exhaustively detailed framework for the future democratic decisions on Quebec independence.

The UK’s ‘chaotic Brexit’ may perhaps be the inevitable result of being the first state to even contemplate withdrawal from the European Union. Regardless, the other Member States can now look to this uncertainty as something to avoid. By contrast to the United Kingdom’s current situation, they should look to the clarity of procedure for legitimate secession in Canada and seek to provide a similarly exhaustive statement of how the ‘constitutional requirements’ of Article 50 would be fulfilled in their own constitutional orders. Crucially, this should take account of institutional roles such as the role of the judiciary, and specific issues of substance such as the protection of the ‘acquired rights’ of EU citizens from other Member States in the event of withdrawal.

Moving on to the question of ‘why’, as with many questions relating to EU and Member State constitutional interaction the German experience is instructive. Although neither the Basic Law nor the German Constitutional Court have provided explicit conditions for when withdrawal would be legitimated, such conditions are arguably implicit. Article 23(1) of the Basic Law details that Germany is committed to participation in the development of the European Union. However, this is conditional on the Union being “committed to democratic, social and federal principles, to the rule of law, and to the principle of subsidiarity, and guarantee[ing] a level of protection of basic rights essentially comparable to that afforded by the Basic Law”. This provision reflects the history of jurisdictional ‘dialogues’ – perhaps less charitably ‘turf wars’ – between the Luxembourg and Karlsruhe courts.

Indeed, the judgments of the latter provide further clarification on the implicit conditions that would enable Germany’s derogation from the prima facie commitment to European integration in the Basic Law. At paragraph 244 of the Lisbon judgment, the Court clearly outlined that: “European integration may neither result in the system of democratic rule in Germany being undermined (a) nor may the supranational public authority as such fail to fulfil fundamental democratic requirements (b)”. The further elaboration of these conditions in the following paragraphs (for example, “European unification…may not be realised in such a way that the Member States do not retain sufficient space for the political formation of the economic, cultural and social circumstances of life”) indicates that a process of constitutional balancing takes place. In ‘pooling’ its sovereignty to pursue European integration, Germany must not forego its crucial role in guaranteeing the conditions for its own citizens to pursue individual and collective fulfilment. If this balance is undermined by the course of the European Union’s development – for example through increasing ‘competence creep’ – then this may provide a substantive reason for considering withdrawal as a ‘safety valve’ to preserve the functioning of the constitutional state.

Consequently, I would advocate that the Member States go further than this implicit approach. Instead, a discourse between political actors and stakeholders in civil society should take place in order to provide a clear constitutional statement of why the state engages in European integration, and what the limits of this engagement would be. It may be argued that this process would open the Pandora’s box of Eurosceptics seeking to hijack the process in order to drive their Member State towards the exit door. However, if we are more optimistic about the capacity for individuals and collective bodies to consider thoughtfully their relation to the European Union, this process could equally illuminate the oft-forgotten reasons for European integration, and the substantive benefits that are provided by the Union legal order and the status of European citizenship. By actively determining the substantive conditions for withdrawal, political actors could definitively undercut the Eurosceptic claims that the independence and sovereignty of the state has been sacrificed at the altar of a European super-state. In tandem with procedural clarity, the political contest over membership of the European Union could then be fought on an even footing, rather than on the basis of the misinformation and uncertainty that we have seen in the Brexit context.

This article has previously appeared on the EUI Constitutionalism and Politics blog and is republished here with kind permission by the author.

II. Referring Brexit to the Court of Justice of the European Union: Why revoking an Article 50 notice should be left to the United Kingdom (European Law Blog, 14 November 2016)

An encore to R(Miller) from the Court of Justice of the European Union?

There is a potential European encore to the constitutional drama of the UK High Court decision in R(Miller) v Secretary of State for Exiting the European Union. The judgment found that the UK government cannot trigger Article 50 TEU without Parliament’s involvement. The government has already indicated its intention to appeal directly to the UK Supreme Court (UKSC). Certain commentators in the media have picked up on the possibility that the Supreme Court could refer (certain aspects of) the case to the Court of Justice of the European Union (CJEU). This has been referred to as ‘the constitutional equivalent of breaking the space-time continuum’.

Of course, as the reaction to the judgment in (R)Miller has shown, the UK media are not afraid of exaggeration. The first and most important thing to reiterate is that the CJEU could not act as the final constitutional arbiter of the question in the case of whether the UK government may use the royal prerogative to give notice under Article 50 TEU. The EU law clause is clear that the condition for the decision to withdraw is ‘accordance with [the] constitutional requirements’ of the Member State. Therefore, the final decision on the substance of whether these requirements have been fulfilled will always be for that Member State’s highest judicial authority. Instead, the possibility of a referral to the Court of Justice in the case concerns one specific aspect of the withdrawal clause: whether the notification to the European Council of an intention to withdraw under Article 50(2) is revocable. The silence of the clause can be seen to constitute a ‘gap’ in the law.

However, this post will argue that it is not necessary for the Court of Justice to prove an authoritative determination on this question of EU law in order for the UK Supreme Court to decide the specific question of UK constitutional law in the (R)Miller adjudication. Therefore – in the specific case of (R)Miller  – the UK court is under no obligation under Article 267 TFEU to refer the question to the Court of Justice of the European Union. The post will go on to consider the hypothetical situations in which there may be such an obligation to refer, and will suggest how the Court of Justice should determine the question in such a scenario.

The argument for an UKSC obligation to refer under Article 267 TFEU

Dr. Albert Sanchez-Graells has provided a robust argument for why the UK Supreme Court will be under an obligation in EU law to submit a reference under Article 267 TFEU. He states that legally a failure to refer could leave the United Kingdom exposed to infringement proceedings by the Commission. The fact that the explosive political consequences of the Commission embarking on such a proceeding makes this course highly unlikely does not change the legal reality. However, on this purely legal question, I would argue contra Sanchez-Graells that the UK Supreme Court does not need to interpret whether Article 50 enables or does not enable revocation of a notification in order to reach a decision on the specific question in the case of whether the United Kingdom’s constitutional requirements for withdrawing from the European Union have been fulfilled.

At paragraph 10 of Thursday’s judgment, the High Court outlined that it was ‘common ground between the parties …[that] a notice under Article 50(2) cannot be withdrawn, once it is given’. As an initial point, therefore, it could be argued that the question of revocability will not come up for determination before the Supreme Court as neither party will raise the argument. However, Dr Sanchez-Graells argues that when the case reaches the Supreme Court on appeal ‘[e]ven if the parties do not challenge or even raise to the UKSC’s consideration the matter of the (ir)reversibility of an Article 50 notification, it is a logical given that the UKSC needs to take a stance on this point in order to be able to rule on the case’. He grounds this on the requirements of the CILFIT test: accordingly the UKSC will be under an obligation to refer unless (i) the question raised is irrelevant; (ii) the EU provision in question has already been interpreted by the Court; or (iii) the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.

Following Sanchez-Graells’ argument, it seems clear that requirements (ii) and (iii) of the CILFIT test are not fulfilled: Article 50 TEU has never been interpreted by the court, and the silence on revocability means that there is reasonable doubt as to its application. However, I would challenge Sanchez-Graells’ statement that ‘it is inconceivable…to argue that the…(ir)revocability of a notice under (Article 50) is irrelevant for the adjudication of this case’. In formalistic terms, it could be argued that the appellants (the government) and the respondents (the initial claimants) proceeding on the assumption that notice under Article 50 TEU is irrevocable means precisely that the question is not relevant for the adjudication of the specific question in the case. However, even if this position were changed and the government argued that notice was revocable, for the purposes of UK constitutional law the consequences remain binary: if notice is not revoked then the salient consequences determining the question as outlined by the High Court will proceed; if notification were revoked then such consequences would not occur. This does not change the determination of the prior question of how exactly such notification may be achieved. Indeed, the fact that the ‘adjudication of this case’ concerns such questions of the internal constitutional requirements of the United Kingdom shows that the question does not yet fall within the scope of the Court of Justice’s interpretative authority because the relevant EU law – Article 50 – has not yet been activated.

The Activation of the Court of Justice’s Interpretative Authority

I would respectfully disagree with Dr Sanchez-Graells’ initial assumption that, before the activation of Article 50, it is necessary that the CJEU provides an answer to the question of revocation. To explain this, we can reverse the analogy of statutes such as the UK’s European Communities Act 1972 acting as a ‘bridge’ to activate the direct effect of EU law in the national order (as most recently reiterated by the High Court’s decision in (R)Miller at paragraphs 37-54). The notification by a Member State of its intention to withdraw from the European Union under Article 50(2) TEU can similarly be understood as a ‘bridge’ from the internal constitutional order that activates the EU procedural law outlined in the rest of Article 50. The chronology is that a Member State decision is made at the purely internal level to withdraw; this withdrawal is then communicated to the Union by the bridging communicative act of the government giving notice to the European Council; consequently, this triggers the procedural EU law regulating the conditions of withdrawal.

Building upon this, a hypothetical situation can be posed to illustrate the situation in which the UK’s highest judicial authority would be under an obligation to refer under Article 267 TFEU. If the United Kingdom, having already triggered Article 50 TEU, make a unilateral attempt to revoke this notice, and this exercise of prerogative power were submitted to judicial review before the UK courts, then a substantive interpretation of EU law would be necessary to determine the question in the case. Consequently, in such a hypothetical case, the UK court would arguably violate its obligations under Article 267 TFEU if it failed to refer the substantive question of whether revocation is allowed under Article 50 TEU to the Court of Justice of the European Union.

I would accept that in this hypothetical situation it is necessary as a matter of EU law for the Court of Justice to have the final interpretative authority over the legal ‘gap’ concerning revocation of notification found in Article 50. However, I would argue that the most desirable way in which the Luxembourg Court could exercise this authority would be to decide that the question of revoking notification falls under the constitutional requirements of the Member State. Just as Article 50(1) specifies that a decision to give notification falls under these requirements, so too should a decision to reverse this process. This would provide a coherent symmetry between the procedures for giving notification and withdrawing notification.

Of course, if negotiations of a withdrawal treaty are at an advanced stage then this could lead to a great deal of political upheaval. However, such upheaval cannot function as a reason for the Court of Justice to find such a revocation to be inconsistent with EU law –  particularly with regard to the silence of Article 50 on the issue. This position is supported by the argument of Lord Kerr – one of the drafters of Article 50 TEU – that notification is revocable. He argues that if a country were to decide during exit negotiations that they wished to halt the withdrawal process then “everybody would be very cross about it being a waste of time…but legally they couldn’t insist that you (the withdrawing state) leave”. Consequently, my argument is that procedurally the Court of Justice must be the final arbiter of this particular issue of Article 50. However, on the substantive question, once the national court has fulfilled its obligation under Article 267 TFEU to refer, the CJEU should fill the legal gap by determining that revocation of an Article 50 notice is a matter for the internal constitutional requirements of the withdrawing Member State.

Conclusions: No Obligation to Refer, but One Final Twist?

In the present proceedings in (R)Miller, I would argue that the UK Supreme Court is not under an obligation to refer the question of the revocability of a notice under Article 50 TEU to the Court of Justice of the European Union. This is because determining the substantive answer to this gap in the EU law found in Article 50 TEU is irrelevant for the national court to determine the answer to the UK constitutional law question of whether the requirements for withdrawing from the European Union have been fulfilled.

However, the situation changes if Article 50 has been triggered and the question of whether this notification can be revoked comes before the UK Courts. In such a situation, the obligation to refer the question to the Court of Justice of the European Union would bite as this concerns a directly relevant substantive interpretation of EU law. If this situation were to arise, my personal opinion is that it would be desirable for the Court of Justice to determine effectively that revocation of notification is permissible in EU law if such revocation is in accordance with the constitutional requirements of the withdrawing Member State.

Therefore, moving back to the present litigation, in the unlikely event that the UK Supreme Court does exercise its discretion to refer the question of revocation to the Court of Justice, I would hope that the Luxembourg court shows the adjudicative wisdom to find that the question is not relevant to the determination of the present case. However, as a final twist, in the unlikely event that a reference is indeed submitted by the UK Supreme Court in December then the Court of Justice could pre-empt the hypothetical situation that I propose above. The Luxembourg Court could outline in obiter dicta that, if the question of revocation is directly on point in the future, then it is a question for the national judicial authority to decide. Consequently, if the direct question of revocation of Article 50 TEU ever does come before a UK Court, they could proceed to judgment on the question without a reference. This would be justified in EU law on the basis that requirement (ii) of the CILFIT test has been fulfilled by the Court of Justice’s prior obiter dicta interpretation. Therefore, I would maintain that if  the Court of Justice is ever called upon to provide an answer to the question it should find that the final substantive decision of whether an Article 50 notification can be revoked should be left to the internal constitutional requirements of the United Kingdom.

To summarise:
(1) The UKSC in the (R)Miller appeal will not be obliged under Article 267 TFEU to refer the question to the CJEU of whether revocation of an Article 50 TEU notice is possible because under requirement (i) of the CILFIT test this question is not relevant to determine the case;

(2) In contrast, if after Article 50 TEU is triggered the question of revocation came before the UKSC, then it would be under an obligation to provide a reference as the question would now be directly relevant to determining the case;

(3) Finally, in the unlikely event that the UKSC does consider that the question of revocation is ‘necessary to enable it to give judgment’ and it exercises the discretion under Article 267 TFEU to refer to the Court of Justice then the Luxembourg Court could pre-empt the hypothetical situation outlined above by providing an interpretation of whether revocation is possible under Article 50 TEU.

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