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But wasn't it unbinding anyway?
by generic on Sat Sep 22nd, 2018 at 10:15:33 AM EST
[ Parent ]
The question at issue is perhaps not whether the referendum was binding - it wasn't, under the UK "constitution" - but whether the invocation of A50 is binding on the UK and irrevocable. I.e. (i) Can the UK revoke it unilaterally, (ii) Can it be revoked with the agreement of the EU Council. and (iii), if so, does a revocation require unanimity on the Council.

A50 itself is silent on these questions which may be interpreted by the ECJ to mean that no legal right to revoke A. 50 exists. However, because of the separation of powers, and because the invocation of A.50 is essentially a political act, there may be no legal reason why the Council and the UK might not jointly agree to a revocation as a political act.

The only question remaining then would be whether the Council can do so by weighted majority vote, or whether unanimity would be required. A. 50 does make provision for the extension of the 2 year notice period under A.50, but only by unanimous agreement. As a revocation most closely resembles an indefinite extension, meaning the notice party never leaves, it seems reasonable to assume a revocation would also require unanimity.

Enter, stage right, some country with a grievance against the UK or the EU, and refusing to agree an indefinite extension/revocation unless their unique and perhaps entirely unrelated grievances are addressed. Gibraltar, treatment of migrants, Irish border backstop, UK budgetary rebate, various UK derogations anyone?

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Sep 22nd, 2018 at 11:38:25 AM EST
[ Parent ]
The only question remaining then would be whether the Council can do so by weighted majority vote, or whether unanimity would be required. A. 50 does make provision for the extension of the 2 year notice period under A.50, but only by unanimous agreement. As a revocation most closely resembles an indefinite extension,
I would argue that a revocation is a form of final settlement, not a form of extension, and as such can be agreed by qualified majority. Making extension subject to more onerous consensus requirements than final settlement is clearly a measure to ensure that negotiations (and attendant uncertainty) do not drag out indefinitely. Dragooning that provision into governing withdrawal of the A.50 notice seems dubious.

But then, the whole of Art.50 is shabby contract engineering from start to finish - it's clearly a provision that was never intended to be invoked.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Sep 22nd, 2018 at 01:34:02 PM EST
[ Parent ]
Ultimately this is politics, not jurisprudence.

If there's a consensus within the EU that it would better if the UK stayed - and I believe there is - then the appropriate legal justifications will be found if the UK decides to change its position. Especially if it changes it after another referendum with a Remain result.

I don't think anyone in the EU wants May or her government to stay, except maybe Orban and some of the other far-right nutcases. But that's a different issue.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Sat Sep 22nd, 2018 at 03:17:21 PM EST
[ Parent ]
I think the EU's position is a little more nuanced than that. Clearly they are not going to be the ones insisting that the UK must leave if the UK decides that it actually was a bad idea all along. However, I don't think the EU is going to allow the precedent to be set that calling a Mulligan on an Art.50 notice is costless. That would create a world where you can give notice of your intent to leave, faff about wasting everyone's time and attention for two years, and then decide you don't actually like the prospect of leaving under the terms available to you after all.

So some kind of concession must be extracted from the UK to allow them to remain at this point. It's possible that simply changing the government will be sufficient, but it's also possible it might not.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Sep 22nd, 2018 at 04:54:37 PM EST
[ Parent ]
You may well be right. IMO it's too early to tell.

At the moment we're some way from the UK remaining. But Corbyn has said he supports another referendum, and there are rumours of another GE soon. (Although there always have been rumours of an Autumn election.)

So currently it's a remote possibility, but not an impossible one.

My best guess is that May is still trying to stall and posture to hide the fact that she's dedicated to a crash-out, and always has been, because that's what she agreed when she was anointed PM.

But I could be completely wrong about that - and she really is as incompetent, passive-aggressive, and delusional as she appears to be.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Sun Sep 23rd, 2018 at 02:40:34 PM EST
[ Parent ]
I am sympathetic to the people's vote campaign but just one question: what do they want to vote on? The real 'final deal' won't be available for years. It will be negotiated in the transition period. The withdrawal agreement is only going to contain a vague declaration about how the final deal is desired to be. But if they wait for the final deal then Remain will no longer be an option because the UK will be legally out by then.

Do they want to vote on the withdrawal agreement? That's just a rerun of Remain/Leave dressed up differently.

Schengen is toast!

by epochepoque on Sun Sep 23rd, 2018 at 03:18:30 PM EST
[ Parent ]
My tentative understanding is that the vote would probably be on The Deal (whatever that turns out to be) vs Remain.

Or perhaps The Deal, vs No Deal, vs Remain, with transferable votes.

A charitable interpretation of May's actions is that she set up Chequers as The Deal knowing it was impossible, which would leave Remain as the only possible result.

But that's more likely to be wishful thinking than reality.

Meanwhile rumours of a November election - possibly with a subtext of "This is your referendum" - are intensifying.

Of course, that could just be wishful thinking too.

In reality no one knows anything - including the people whose job it is to know things.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Sun Sep 23rd, 2018 at 04:24:06 PM EST
[ Parent ]
Not everyone agrees.
The leader of the union that is Labour's biggest financial backer has said remaining in the EU must not be an option in any new referendum on Brexit.

Len McCluskey said it would be "wrong" and would risk pushing Labour voters who had backed Leave in the 2016 referendum to support the Conservatives.

by gk (gk (gk quattro due due sette @gmail.com)) on Sun Sep 23rd, 2018 at 04:28:40 PM EST
[ Parent ]
But a "Deal or No Deal" referendum would be pointless, just another example of the UK thinking it's the only player at the table.  The EU's position is basically, "If you want to change your mind, we'll entertain that.  If you don't, the clock is already running, make a proposal."  A "Deal or No Deal" referendum would be seen as nothing but a lame attempt to stave off the deadline, and I don't see the EU being at all interested.
by rifek on Thu Sep 27th, 2018 at 12:13:29 AM EST
[ Parent ]
To revoke this A50 notice is to terminate (cancel, withdraw, end) the notice ...
and its effects in progress.

To argue tendered termination of A50 by UK gov in lieu of its agreement to 19 Mar 2018 draft settlement (in progress) does not obviate the necessity of its own draft and its acceptance by the Council and EP before 3 March 2019 plenary session.

Apparently there is no form transmittal.

What might this UK document say? Are UK gov and parliament capable of agreement in themselves as to which domestic laws (nacted to date in anticipation of "frictionless" trade) they will admit and which they will repeal? How much time for reconciliation might UK gov stipulate? Further, is UK gov and parliament, under separate cover as they say, willing and able to compensate claims by interested private persons of "damage" by the proceedings of the A50 notice delivered?

Think about those consequences then speculate as to whether unanimity or qualified acceptance of this novelty by the EU Council and EP would or should be forthcoming.

Diversity is the key to economic and political evolution.

by Cat on Sat Sep 22nd, 2018 at 04:45:40 PM EST
[ Parent ]
The UK shouldn't have passed any domestic laws yet that conflict with EU law, since they're still members and bound by EU rules until the end of the notice period. That's how notice periods are generally understood to work. So there should be nothing to reconcile if they decide to kiss and make up, other than whatever symbolic concession the EU decides it wants in return, to discourage this kind of brinkmanship in the future.

As for consequential damages of the aborted attempt to alter public policy, I believe the likely response to such claims will follow the line of reasoning advanced in Arkell v. Pressdram or Cox v. Cleveland.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Sep 22nd, 2018 at 07:07:13 PM EST
[ Parent ]
It has been said in the UK press that the Withdrawal Bill affects some 1,000 statutes. I had joked about EU combing out the nits many months ago just to arrive at a "clean", actionable trade agreement with Tory gov after concluding A50.

The bill is an Act of Parliament now. Which means domestic laws retained and "in conflict with EU law" have most certainly been passed and endorsed by HRM.

Information about the Withrawal Bill is an index of FAQs. Apart from repeal of the ECA,

Why are we repealing the European Communities Act 1972 (ECA)?
the doc Converting and preserving law [AND NOT RETAINING] reiterates legislative purposes of the Act. Indeed, this thing was designed from the start to provide minimum compliance with EU directives needed to secure a UK favorable, bi-lateral trade agreement in the event no A50 settlement were concluded. BATNA.

Hence the "impasse" in concluding the 19 March draft settlement. A cursory review confirms that those items repealed domestically correspond with those remaining provisions UK refuses to endorse in the draft. Assurance of GFA enforcement is not the least of these, certainly.

But this agreement brings the "transition period" into effect. No signature, no transition period. This agreement compels UK compliance with EU directives in the "transition period"; it forbids UK bi-lateral FTAs with third-countries in the "transition period"; and does not restore UK voting rights in Council or EP.

It is no exaggeration to say, unwinding the Withdrawal Act will be as chaotic as it was to establish even if the ECJ were to entertain unilateral revocation of the A50. Before 31 October, which seems to be the Council's latest deadline for UK endorsement of the draft.

Finally, I don't see that either of those case citations appear among UK High Court judgments (with Miller) or pertain to UK torts litigation by persons, foreign and domestic, over, say, securities frauds or other misrepresentations of material fact. Market "uncertainty" as well as legal "uncertainty" are a powerful catalysts for turning investors into ... political activists.

Diversity is the key to economic and political evolution.

by Cat on Sat Sep 22nd, 2018 at 11:24:31 PM EST
[ Parent ]
"I would argue that a revocation is a form of final settlement, not a form of extension, and as such can be agreed by qualified majority."

A revocation may be a consequence of some final settlement, but I don't think it can be regarded as simply an opening move in a dispute which can be resolved later and simply forgotten about afterwards. Otherwise, why wouldn't other members unhappy with something or other invoke A.50 to provide themselves with more leverage?

Invoking A.50 has certain consequences (and costs) in an of itself. (For instance the Irish stock market has been in marked decline despite a booming economy).

The A.50 process was therefore meant to be time limited and terminated after two years by default, after which the only remedy, if a departing member changes its mind, is to re-apply for membership under A.49.

But perhaps the Council itself has discretion, as a decision making body, to decide whether unanimity or weighted majority decision making is required. The ECJ may be reluctant to be prescriptive, given A.50's silence on the matter.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Sep 22nd, 2018 at 09:12:37 PM EST
[ Parent ]
The legitimacy of the referendum is not the legal question at all.

The legitimacy (legal authority, laws) of UK gov to deliver the A50 notice --or-- is not disputed. Parliament granted gov this authority. (And have been since squabbling with amendments to its "Withdrawal Bill" who expeditiously to curtail gov's authority to negotiate with EU gov.)

The legitimacy of UK gov (excluding parliament) unilaterally to interpret provisions of LISBON in order to "revoke" its own A50 notice is a legal question (argued in this thread with political/legislative speculations) that is not the subject of SCS appeal for review by the ECJ.

More UK "cherry picking" --this time straight to the throat of separation of powers, republics hold so dear.

BWAH!

Diversity is the key to economic and political evolution.

by Cat on Sat Sep 22nd, 2018 at 05:07:52 PM EST
[ Parent ]

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