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25 January 2017

Supreme Court on withdrawing the Article 50 Notice: No view! So over to ECJ

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Following yesterday’s judgement, anyone with commercial interests in the UK must wonder if this historic `game’ of having/eating cake is now over. The answer will depend on whether giving notice of an “intention” can be withdrawn. The common man would say “of course it can”...

...otherwise why bother with stating an `intention’ rather than just doing it.

The author of the article – Lord Kerr – has stated explicitly (link) that the intention can be withdrawn as, on his kitchen table, he wrote such a phrase into the draft Treaty. But he accepted the strong statement from Jean-Claude Piris – then Chief Legal Counsel to the European Council – that it was so obvious you could cancel a mere `intention’ that he deleted the phrase. Last September, in an article for the Financial Times, Piris re-confirmed his strong view (link) that withdrawal is possible – naturally, only up to the point where we actually leave.

What did the Supreme Court say on this crucial issue for the future of the country?

 “26. In these proceedings, it is common ground that notice under article 50(2) (which we shall call “Notice”) cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn. Especially as it is the Secretary of State’s case that, even if this common ground is mistaken, it would make no difference to the outcome of these proceedings, we are content to proceed on the basis that that is correct, without expressing any view of our own on either point. [Author emphasis] It follows from this that once the United Kingdom gives Notice, it will inevitably cease at a later date to be a member of the European Union and a party to the EU Treaties.”

For various reasons, it suited both Government and Gina Miller not to argue the point so the High Court judgement specifically noted that it was common ground that the Notice could not be retracted and did not discuss it further.

If the Supreme Court had decided to consider the point, it would have opened a massive new dimension to the case because they would have had to refer it to the European Court of Justice – a dramatic turn of events. The Supreme Court stated in Para 21 “Section 3 of the 1972 Act provided, among other things, for any question as to the meaning and effect of the Treaties… to be treated as a question of EU law by the UK courts, and it further provided for such determination to be made in accordance with principles laid down by the European Court of Justice (“the Court of Justice”) or, if necessary, to be referred to the Court of Justice.”

So the rationale for the action by Jolyon Maugham QC before the Irish Courts is clear: cause the Irish Courts to refer the interpretation to the ECJ. Then the common sense of Lord Kerr and Jean-Claude Piris will be tested. Hopefully, the ECJ will have no difficulty in finding for common sense – leaving the way open for the UK to have a further “electoral” consideration of the wisdom of Brexit.


© Graham Bishop

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