Andrew Duff -  On Governing Europe

Running Commentary III

The meeting of the 27 EU leaders over dinner on 15 December is their first chance to have a real political debate about Brexit since the summer. In the absence of any clear signal from London about where the UK wants to go when it leaves the EU, the summit debate will inevitably be more about process than content. Yet clarity about process on the EU side would be very helpful, especially as the British end of Brexit is embroiled in legal and parliamentary battles.

Having completed its hearings on 8 December, the UK Supreme Court is mulling away and will deliver its verdict before the end of January. It is worth emphasising again that this fascinating litigation is not about Brexit itself but about whether it is parliament or the executive which can pull the trigger on Article 50. The outcome of the case will affect the UK’s own constitutional development in a significant way, especially with respect to its devolved administrations, but it is unlikely to have much of a material effect on the formal start of the Brexit process.

As the House of Commons indicated in a vote on 7 December, parliament will vote for the invocation of Article 50 come what may. Only 89 MPs, mostly from the SNP, opposed the resolution against 461 who approved the motion backing the prime minister’s timetable and calling for the government to publish more details of its game-plan. Today (14 December), the Brexit minister David Davis told the Commons that they can expect that information in February.

We are not out of the clutch of the courts. Another case in the English High Court [@eurorealist] seeks to argue that the UK will still be a member of the EEA even if it leaves the EU. On the face of it, this is an implausible argument, not least because only EFTA members can become non-EU members of the EEA and the UK left EFTA in 1973. And even if there were a technical need for a separate decision on leaving the EEA (under Article 127 of the EEA treaty), the government would take that step on the assumption, almost certainly correct, that the Commons would back such a move.

More interesting, and much more fun, is the attempt by Jolyon Maugham QC [@JolyonMaugham] to begin a case in the Irish High Court whose purpose is to tease out of the European Court of Justice (under Article 267 TFEU) an opinion on the question of the revocability of Article 50.

Maugham also asserts rather wildly that Prime Minister May has already triggered Article 50 by having accidently disclosed to the European Council that her country was going to leave the EU. On that basis, he argues that the meetings of the 27 held without the UK are illegitimate. We can be sure that the European Court will have no truck with that argument – not least because Theresa May does not object to her exclusion. (The hint of victimisation goes down well with the Brexiteers back home.)

For their own and separate reasons, neither the government nor the complainants in the London litigation raised the matter of revocability. The importance of the question lies in building a scenario in which the British, having looked at the terms on offer in the Article 50 negotiations, change their mind about leaving. Such a scenario is admittedly highly improbable because the EU 27 do not intend to impede the conclusion of an Article 50 withdrawal agreement which extricates the UK from its rights and obligations as an EU member. Moreover, a complete change of heart and mind by the British would only really be possible after an emergency general election in which an avowedly pro-EU government replaced that of Theresa May. Neither an early election nor such an alternative administration is in prospect.

However, seized with the pertinent question raised by the Dublin court, the Court of Justice would have to deal with it – and would have to give an affirmative answer to the question put. There is no doubt among those of us who drafted Article 50 that it is in theory revocable. It is in the nature of the EU treaties, which are stuffed with prohibitions and qualifications, that what is not forbidden may be permissible. The only legal criteria to be attached to the withdrawal of notification to leave the EU are, first, that the change of tack is made in a constitutional fashion (Article 50(1) TEU) and, second, that the new strategy meets the standard of sincerity required of member states (Article 4(3) TEU).

But what would the European Council really do in those circumstances? Would it be bound to accept the UK as a continuing member state without imposing costs incurred for the hiatus? Could things just return to normal as if the Brexit scare had never happened? We know that David Cameron’s infamous package deal of February 2016 is now defunct, but would the UK seek to revive some or all of it? Or would Britain’s EU partners seek to impose new terms and conditions on continued British membership with regard to the budget or to opt-outs? What deal would the eurozone states want to strike with the prodigal UK about the next phase of constitutional reform of the Union?

The European Court, of course, will not deal with hypothetical questions of this type, much to the frustration of the Maughamites. But these are questions which the European Council would be wise to reflect on as it turns its serious attention to the business of Brexit.


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