Philip Moser QC: Will the Supreme Court be obliged to make a reference to Luxembourg in R(Miller)?

Photo credit: The Independent

In its judgment in R(Miller & aor) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) the Divisional Court ruled that the Government cannot rely on its executive power under the royal prerogative alone to invoke Article 50 TEU and give notice under Article 50(2) that the United Kingdom intends to leave the European Union. The involvement of Parliament is a constitutional prerequisite.

The Divisional Court granted permission to appeal to the Supreme Court. The appeal will be heard by all eleven current Supreme Court Justices between 5th and 8th December, with judgment to follow in the New Year.

From left to right: Sir Terence Etherton MR, Sales LJ and Lord Thomas CJ

The judgment of the Divisional Court founded upon a point of law that was common ground between the parties, namely that “a notice under Article 50(2) cannot be withdrawn, once it is given” (Miller, para. 10). Thus, the Court explained (ibid, at para. 11):

“Once a notice is given, it will inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union and from the relevant Treaties at the end of the two year period, subject only to an agreement on an extension of time between the United Kingdom and the European Council (acting unanimously) as set out in Article 50(3) or the earlier making of a withdrawal agreement between the United Kingdom and the European Council (acting by a qualified majority and with the consent of the European Parliament). The effect of the giving of notice under Article 50 on relevant rights is direct, even though the Article 50 process will take a while to be worked through.”

This “common ground” was achieved by way of concessions by Counsel on both sides in Miller. This concession was the foundation on which the Divisional Court built its conclusion that such an effect on relevant individual rights, created in UK law by the European Communities Act 1972 and other statutes, could not be undone by use of the royal prerogative alone, but required an act of Parliament (whether primary legislation or otherwise was not specified).

There is indeed a strong argument that notification under paragraph (2) of Article 50 is irrevocable. If it were otherwise then Article 50(3) would seem to be rendered redundant. That paragraph reads:

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

The cessation of the application of the Treaties to the withdrawing State is apparently intended to be automatic. Only one exception (“unless…”) is permitted. If notice were not irrevocable and automatic, then it could be revoked up to a year and 364 days after notification, regardless of any consent or otherwise of the Council. That would surely frustrate the meaning and purpose of Article 50(3).

Lord Kerr of Kinlochard, author of Article 50 (photo credit: BBC)

There is however a respectable argument to the contrary. No lesser an authority than the draughtsman of Article 50 TEU, Lord Kerr of Kinlochard has given an interview to the BBC stating that Article 50(2) notice is “not irrevocable”. In his recent post on the withdrawal process Professor Philip Allott points out, for example, that Article 50 is silent on withdrawal of notice and gives what is no doubt the correct, real-world assessment on revocability:

“Article 50 does not say if the notification of intention to withdraw can be withdrawn at any time. The EU Council would no doubt accept such a withdrawal of the notification.”

It may be presumed that, despite such counter-arguments, it was in neither side’s interest to argue the revocability of Article 50 in the Divisional Court.

For the Claimants, their legal argument works most straightforwardly if Article 50 is irrevocable, as illustrated by the Court’s summary of the effect of irrevocability in paragraph 11 of the judgment (cited above). It may even be that it only works if Article 50(2) notice is irrevocable. Thus, in order to win the legal argument, the Claimants were understandably ready to offer that concession, abandoning what might otherwise be considered (most obviously by “Remainers”) a valuable political option of revocability.

For the Government it is anyway presumably politically impossible to be seen to argue the revocability of Article 50 notice, which would contradict the clear intent of the line that “Brexit means Brexit”. It would also introduce unwelcome further uncertainty into the Brexit process.

Above all, however, and this is surely the real “killer” argument in favour of the concession on the revocability of Article 50 TEU, if the case turned necessarily on the irrevocability or otherwise of Article 50 notice, that would be a question of the interpretation of EU law, not English law, and so the Divisional Court might have considered it had to refer the question for a preliminary ruling to the Court of Justice of the European Union. This is due to the words of Article 267 TFEU, which reads in relevant part that when a question on the interpretation of the TEU arises, “before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

The position becomes more stark in the Supreme Court, which would be obliged to make a reference in such a situation, since Article 267 continues: “Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”

Quite apart from the delay this would involve, one can easily imagine the negative political and practical consequences of such a question being referred for decision to Luxembourg in the febrile atmosphere and tight projected timetable of Brexit.

There is however a potential difficulty for this “common ground” approach in the Supreme Court at the hearing in December. By long-standing convention the House of Lords (now the Supreme Court) does not decide points of law on the basis of concessions by Counsel. As such, if the common ground between the parties that “a notice under Article 50(2) cannot be withdrawn” is a necessary foundation for any judgment by the Supreme Court, then the combination of its own convention and Article 267 will oblige it to make a reference to the Court of Justice in Luxembourg. Thus, the Supreme Court would be obliged to refer, at least, in circumstances where it wished to uphold the Divisional Court’s judgment on the same grounds (which are squarely founded on the concession) and if it did not see the irrevocability of notice as being acte clair (that is a point of law which is reasonably clear and free from doubt). Since it would be extremely surprising if the point were considered acte clair, a reference to Luxembourg would seem to be the likeliest outcome in such circumstances, adding an indeterminate period of further delay to proceedings.

It appears therefore that a reference could only be avoided in the Supreme Court if it either overturned the finding of the Divisional Court or upheld it on grounds that did not necessarily require the irrevocability of notice. Whether the irrevocability of Article 50(2) notification is in fact necessary for the success of the Claimants’ arguments did not have to be explored in the Divisional Court’s judgment, given the “common ground” foundation as aforesaid. There is a respectable case that irrevocability is not necessary for the Claimants’ arguments to work and that the (undeniable) real possibility of notice having the requisite direct effect on relevant individual rights created by Act of Parliament is enough for the same arguments to succeed on appeal.

The need for an Article 267 TFEU reference on the Article 50 TEU notice point therefore remains open, but it seems clear that the Supreme Court will at least have to address the issue, if necessary of its own motion.

philip_moserPhilip Moser QC

Monckton Chambers
1-2 Raymond Buildings
Gray’s Inn
London WC1R 5NR

Tel: 020 7405 7211

The views expressed are personal to the author and not attributable to Monckton Chambers or any of its members.

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