The Miller Case – an alternative analysis

16 Nov 2016

In this post, our former head of chambers, the prominent EU lawyer Sir Jeremy Lever, KCMG QC, considers whether the Supreme Court will have to make a reference to the CJEU in the Miller case and sets out an alternative analysis of the legal issues.

With regard to the potential need for a reference by the UK Supreme Court to the CJEU in the Brexit appeal proceedings in December, I think that the position can be summarised as follows.

In order to uphold the decision of the High Court in the Miller case on the ground argued by Lord Pannick Q.C., the Supreme Court would almost certainly have to make a reference to the CJEU of the question whether a notice given by a Member State under Article 50 of the Treaty on European Union (“TEU”) can be unilaterally withdrawn by the Member State that gave the notice. Lord Pannick’s argument was that service of such a notice was like pulling the trigger of a rifle: the bullet thus released cannot be recalled by the marksman.

The High Court did not need to decide whether the basis of that argument, namely that an Article 50 notice can no more be recalled than a bullet can be, was correct since it was common ground between the parties that an Article 50 notice cannot be unilaterally withdrawn.

However, the established practice of the House of Lords’ Judicial Committee was, and I think that the practice of its successor the Supreme Court must be, that their Lordships will not decide questions of law on the basis of concessions by Counsel.

Whether or not an Article 50 notice can be unilaterally withdrawn is certainly not “acte clair” in the sense of being either obvious or already the subject of a relevant earlier decision by the CJEU. The opinion of respected academic legal scholars that a notice can be unilaterally withdrawn is on record; and Lord Kerr of Kinlochard, who was involved in the drafting of the TEU, has publicly stated that that too is his opinion.

If the question remains relevant to the decision of the Supreme Court it will therefore itself have to find an answer to it and, unlike the High Court, will not be able to proceed simply on the basis that the answer was “common ground” between the parties”. As the UK’s court of final appeal, it will then be obliged, by EU law, to seek the opinion of the CJEU. Indeed as a matter of common sense, only the CJEU could give a definitive ruling on what is a pure question of EU law.

Even apart from the pending litigation, there would be a strong public interest in knowing definitively whether such a notice can be unilaterally withdrawn. First, it cannot be ruled out that a future British Government might wish to withdraw a notice that had been given in March 2017. Secondly, the possibility of unilateral withdrawal of the Article 50 notice is also relevant to foreseeability of the time when Brexit will occur following the service of Article 50 notice which is also of huge relevance to those who would be affected by Brexit. Thirdly, it would significantly affect the dynamics of the negotiations between the UK and the EU27.

However, having regard to everything that would need to be done if a reference to the CJEU were necessary, I myself cannot foresee how, even using the CJEU’s expedited procedure, the CJEU could give judgment on a reference to it before the second quarter of 2017. If that is so, the Supreme Court would then not be able to hand down judgment in the Brexit appeal before,at the earliest, the second quarter of 2017.

Even though it might be of huge importance for the United Kingdom to obtain, before the British Government served notice under Article 50,  a definitive answer to the question of whether the notice could be unilaterally withdrawn, one has to recognise that the consequent delay would be likely to be politically highly controversial.

There is however an alternative basis on which the Supreme Court could uphold the decision of the High Court, being a basis that I believe would not require a reference to the CJEU.

The wording of Article 50 TEU makes it clear (i) that a notice can be served by a Member State under the Article only if the Member State has “decided” to leave the EU and (ii) that the decision in question is to be ascertained by reference to the constitutional rules of the Member State in question.

The European Union Referendum Act cannot, it is thought, be construed as providing that a majority vote in favour of leaving the EU would constitute, or itself authorise, the Government to take, a decision to leave the EU, though, when the Bill was being debated in the House of Commons, the then Foreign Secretary indicated that the Government would take the necessary steps to give effect to, a majority vote in favour of leaving the EU.

As the High Court found in its judgment, if the United Kingdom leaves the EU, British citizens and companies will lose many important legal rights that they currently enjoy, as a matter of UK law, by reason of UK membership of the EU. Some of the rights that would be lost could not, post-Brexit, be secured, even approximately, by UK legislation and, it is thought, none could be perfectly replicated by the UK Parliament post-Brexit. A British Government cannot, without legislative authority, take a decision that would have such an effect. It can decide to seek from Parliament, the necessary legislative authority and can decide to use all the means available to it to pass the necessary legislation through Parliament. But unless and until such legislation has been passed there is no decision by the United Kingdom to leave the EU.

If that analysis were accepted by the Supreme Court, it would not have to refer any question to the CJEU.

An advantage of proceeding on the basis of that analysis would therefore be that the litigation in the Supreme Court could be completed without delay. The corresponding disadvantage would be that, if a notice under Article 50 were in due course then served, it would be served in ignorance of the answer to the highly relevant question of whether such a notice could subsequently be unilaterally withdrawn by the British Government.

The foregoing is intended to cast light on the important constitutional issues raised by the Brexit litigation. As the High Court made clear in its judgment, the analysis of whether an Act of Parliament is required to trigger Article 50 is independent of the merits or demerits of Brexit. It concerns the more fundamental question of what is consistent with the rule of law within the British constitution.