It befits even academics to change their mind, on careful consideration and reflection. Along with many others I have thought for some time that the Miller litigation turns on whether the Art 50 notification is revocable or not. If the Government can, at any point, inform the EU that the Brexit process is discontinued, then its act of starting that process does not directly interfere with the rights which the European Communities Act (ECA) incorporates in UK domestic law. It is this alleged interference which takes the Art 50 notification outside the sphere of the Crown prerogative: the Government cannot use the prerogative to interfere with acts of Parliament.
It is well known that in Miller the Government has accepted that the notification is irrevocable. As there was agreement on this with the claimants, the High Court did not examine the point (see paragraph 10), and assumed that both parties were right. But there is speculation on whether the Government will modify its position in the appeal proceedings. This gives rise to intense speculation, reaching even the BBC, about a possible reference to the European Court of Justice (ECJ). The Supreme Court is obliged to refer questions of EU law, of relevance to the proceedings before it, to the ECJ, unless the meaning of the relevant provision is clear (“acte clair”). Art 50 is anything but.
This blogpost does not examine whether the Art 50 notification is revocable or not. Instead it argues that, for the Miller litigation, this does not matter.
The High Court judgment is principled. Its foundation is general UK constitutional doctrine, reaching back several centuries, about parliamentary sovereignty, and its genesis and evolution as a fundamental brake on the unilateral powers of the Crown. Against that canvas, the High Court examined whether the power to notify withdrawal from the EU rests with the Government, or with Parliament. In doing so, it conflated the decision to withdraw (Art 50(1)), with its notification (Art 50(2)) (paragraph 16). For the judges it was immaterial to focus on one or the other, as, on the facts of the Brexit process, the notification will encompass the decision to withdraw – there is no separate, prior decision, at least not in legal terms.
All of this matters because it shows that the High Court ruled that the decision to withdraw from the EU (not just the notification) is not for the Government, but for Parliament. The sovereignty of Parliament demands this. That I think is critical. The question in Miller is not about what can or cannot happen in the further Brexit process. It is about who has the authority to decide on Brexit in the first place, in light of the unwritten constitution. How could that be affected by the question whether the notification, once given, can be revoked, and Brexit consequently halted? Such a revocation would be a further act, which could trigger its own set of questions about the division of powers. Imagine, hypothetically, that Parliament decides that Brexit must go ahead, and that the Government, before the end of the two years, withdraws the notification contrary to Parliament’s will. Or that the Government notifies, without first going to Parliament, and Parliament subsequently seeks to reverse the process. These are all distinct issues.
The latter hypothesis sheds further light on why revocability does not matter. Those who consider that it does, point to the fact that revocability means that Parliament can always halt the Brexit process. Nothing definitively happens with notification. But how relevant is this for the Brexit division-of-powers question? No one argues that Parliament cannot limit the prerogative of withdrawing from an international treaty. All are agreed: parliamentary sovereignty means that Parliament can make any laws, and that such laws can always limit or cancel certain types of prerogative powers. So to say that, if notification is revocable, this means that Parliament can always intervene does not answer the question whose power it is to decide on Brexit in the first place (compare with Miller, paragraph 64). All revocability does is to make the Brexit process as such less definitive upon notification.
But, my critics will say, all of this does matter. If the Government notifies, negotiates a withdrawal agreement, and brings this before Parliament to be ratified, Parliament simply has a chance to stop the whole process – provided the notification can be revoked. The Government has said, including in the hearing before the High Court, that the withdrawal agreement will need to be ratified (see here). So Parliament can always stop Brexit.
Except that it cannot. Withdrawal is not like accession or treaty change. Any accessions or changes to the founding treaties can only enter into force upon acceptance by all Member States, in accordance with their constitutional requirements (Arts 48 and 49 TEU). Remember the Constitutional Treaty, voted down by the Dutch and the French in referenda, and that was that. The withdrawal agreement is not set up in this way. Art 50(3) is clear: if there is no withdrawal agreement within two years, Brexit ensues. So the Government might fail to find an agreement with the EU, and there would then be no Parliamentary approval phase. Or the Government might put an agreement before Parliament, and Parliament could reject it, and still Brexit would go ahead: there would effectively be no duly approved withdrawal agreement, and the two-year period would do the trick (see Miller, paragraph 14). It is only if the withdrawal agreement provides that actual exit is conditional on the UK Parliament’s approval that Parliamentary sovereignty would not be affected by the notification. Now the Government might try to negotiate such a clause, but there are no guarantees, at this point in time, that the EU would ever agree; nor that the Government will be inclined even to ask for this.
So to sum up:
- It is no answer to say that, if the notification is revocable, Parliament can always force the Government to stop Brexit. This the Parliament can do on any understanding of the scope of the royal prerogative.
- It is no answer to say that the withdrawal agreement will be put before Parliament. There may simply not be such an agreement, and Parliament could do nothing about that. If there is an agreement, and Parliament rejects it, that does not stop Brexit from happening.
- It is no answer to say that the withdrawal agreement could provide that Brexit is conditional on the UK Parliament’s approval. This would need to be negotiated by the Government, and agreed by the EU. It is not in Parliament’s control.
The conclusion is that the revocability of the Art 50 notification does not matter for the fundamental question now pending before the UK Supreme Court. This also means that no reference to the ECJ is called for.