So the CJEU has confirmed that the UK can unilaterally revoke under Article 50. This has important ramifications for domestic law
A thread about 2 of them:
1. It renders Miller dead letter.
2. It undermines the argument that legislation is needed prior to revocation.
A thread about 2 of them:
1. It renders Miller dead letter.
2. It undermines the argument that legislation is needed prior to revocation.
FIRST, Miller. It is now clear that Miller was essentially decided per incuriam. It depended on the hypothesis (accepted by both sides) that once triggered Art 50 was irrevocable. That hypothesis (about EU law) has now been shown to be false.
Miller does remain good law - but only in the (vanishingly unlikely) circumstances that the UK in future joins and then leaves an international community with the same characteristics as the EU, but with an exit process starting with an irrevocable notice of intention to leave
[there is only actually one remotely plausible way this would happen: we remain or rejoin the EU, and Article 50 gets amended to overturn Wightman and be explicitly irrevocable; but like I say the plausibility of this is remote]
This means that Miller is not an authoritative statement of any legal proposition of practical importance. It is basically dead letter.
It obviously has an legacy: it prompted new thinking about the prerogative, for example, and it proposes novel arguments about parliamentary sovereignty, the power to amend the constitution, the way we account for the place of EU law in the domestic constitution etc.
But binding force, or legal authority (on any of these points, or others) is not part of that legacy.
SECOND, the controversy over whether or not domestic legislation is needed prior to revocation i.e. whether the UK's constitutional requirements include Parliamentary involvement in the decision to revoke.
It seems to me that the best arguments that legislation is needed are those based on the idea that revocation without legislation would frustrate the intention of Parliament. But in the light of today's Wightman decision, these arguments now seem to fail:
The first statute which would purportedly be frustrated by revocation is the European Union (Notification of Withdrawal) Act 2017.
@RobertCraig3 runs this argument here: ukconstitutionallaw.org/2017/10/16/rob…
@RobertCraig3 runs this argument here: ukconstitutionallaw.org/2017/10/16/rob…
@RobertCraig3 But we are now in a much better position to properly construct that statute. In particular, it should not be constructed under the influence of the false hypothesis which animated Miller
@RobertCraig3 This Act empowers the PM to engage in the Article 50 process. The "intention to leave" and the "power to notify" to which it refers are the ones in the Article 50 process. The nature of the power so conferred on the PM must be constructed in light of the nature of that process
We now know that process to be revocable. So the Notification Act must be understood accordingly.
It empowers the PM to engage in a process with a baked in possibility of revocation. So - without more - the best interpretation of that empowerment is that it includes the bundled power to revoke the notification.
The alternative reading would have the consequence that the statute implicitly binds the Prime Minister as it empowers her, allowing her to enter the Article 50 process, but subject to restrictions which originate in national law, not EU law.
But there are no such restrictions in the statute. And reading them in drives a wedge between the nature of Article 50 in domestic law and the nature of Article 50 in EU law. This would be a mistake.
Similarly, the European Union (Withdrawal) Act 2018 is sometimes cited as a statute expressing an intention which would be frustrated by revocation. @Prof_Phillipson argues this I think.
@Prof_Phillipson This argument runs something like this: the withdrawal act evidences parliament's intention that the UK leave the EU, and that is the intention which revocation would frustrate.
@Prof_Phillipson This intention can purportedly be read into the Act a couple of ways - generally, in its Long Title (An Act to...make other provision in connection with the withdrawal of the United Kingdom from the EU), or specifically in s1, which repeals the EC Act 1972
@Prof_Phillipson [NB - this reading in is necessary because nowhere does the Act explicitly state a Parliamentary intention to leave the EU. ]
@Prof_Phillipson The "Withdrawal of the United Kingdom from the EU" referred to in the Long Title is not something (thereby) intended by Parliament. This refers to a process which was already underway when the Act was passed - the Article 50 process.
@Prof_Phillipson We now have confirmation that this process is reversible by its very nature. Parliament's intention in the Withdrawal Act was not to entrench any particular outcome to that process or to change its nature. It was to "make provision in connection" with it or its outcome.
@Prof_Phillipson And the outcome it provides for wasn't even its "anticipated" outcome. The Withdrawal Act makes provision for no-deal Brexit. It was anticipated (and still is, I guess) that it, or much of it, would be superseded by legislation implementing a subsequent withdrawal agreement.
@Prof_Phillipson The Withdrawal Act provides for no-deal brexit. But surely it is obvious that it should not be read as evidence of Parliamentary intention that there actually be a no-deal brexit. Similarly, it should not be read as Parliamentary intention that there be any Brexit at all.
@Prof_Phillipson The relevant intention of that Act is this, and nothing more: "if one particular outcome of the Article 50 process occurs, namely no-deal, our legal system must be in a position to accommodate it. (and it will do so like this... )"
@Prof_Phillipson It provides the (necessary) legal framework for one possible outcome of the Article 50 process. It expresses no substantial limits on the UK's participation in that process. So none should be read into it.
@Prof_Phillipson A caveat: I realise that both the AG and this morning's press release refer (variously) to the need for democratic process / legislation prior to revocation. (Let's see precisely what the judgment says when it's published.)
@Prof_Phillipson But for now, these are best seen as misstatements of UK Law - possibly based on a misunderstanding of Miller; possibly driven by an urge to reinforce the normative credentials of the incorporation in Art 50 of domestic constitutional requirements.
@Prof_Phillipson They certainly can't change UK law. They don't have the authority (and don't seem to be trying) to create a new obstacle to revocation in domestic law. They just mistakenly assert that there is one.
The only way for them to be right is if there is a pre-existing requirement for legislation in domestic law. The outcome of Wightman undermines the best arguments that there is one.
