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Can the UK reverse the Brexit process?

by Frank Schnittger Tue Nov 27th, 2018 at 06:46:32 PM EST

The European Court of Justice is today hearing a case to determine whether a state has the right to unilaterally withdraw an A. 50 notification of its intention to leave the EU. (case number C-621/18). The Inner House of the Court of Session in Scotland decided to refer the following question in a preliminary reference to the Court of Justice of the European Union:

`Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU'.

The Irony of the ECJ deciding on the UK's rights in this matter has not been lost on some observers, with some Brexiteers outraged the court is even considering the matter. A.50 provides that a member who has left the EU and wishes to rejoin must do so via the standard A.49 accession procedure. But A.50 is silent on what happens if a member issues an A. 50 notification and then changes their mind on the matter within the 2 year negotiation period before they actually leave, so some more clarity is welcome.


Oliver Garner has written a blog on the European Law blog arguing that such a unilateral revocation by the United Kingdom should be possible, so long as a decision is made to do so in accordance with the constitutional requirements of the Member State. He quotes arguments by legal scholars to the effect that it would be nonsensical to force a member state which has changed its mind to wait the full 2 year A. 50 negotiating period and then re-apply for membership under A.49, especially if there has been a change of government or popular mandate in the meantime.

He also notes that "Article 68 of the Vienna Convention on the Law of Treaties (VCLT) does explicitly address the issue of revocation of notice to withdraw from a treaty. This provision outlines that `a notification or instrument provided for in Article 65 or Article 67 may be revoked at any time before it takes effect'." He quotes Closa to the effect that "`article 50 is not an institutional innovation of the EU: most international organizations require a `preparation' or `cooling off' period... In these international organizations, the delay between announcement and effective withdrawal serves as a `cooling off' period allowing the withdrawing State to change its position.'"

I have responded to his article (in the comments) as follows:

The phrase "clutching at straws" comes to mind. Whatever way you look at it, the insertion of a simple clause or sub clause in A.50 providing for the revocation of an A.50 notification in certain circumstances would have made this whole question absolutely clear. The absence of such a clause is therefor damning. Clearly there was no intention to create such a "right" by the framers of, and parties to, the Treaty. You are asking the ECJ to create a "right" where patently none is provided for in the Treaty.

You must also take the separation of powers between the ECJ and the European Council and Parliament into account. The latter two institutions are charged with the political running of the EU. Clearly they could, at their absolute discretion, decide to accept a request for the revocation of an A.50 notification as a political act. However making a political decision to accept or reject such a revocation, and granting an absolute right to a withdrawing member to unilaterally withdraw their notice of leaving are two very different things. You are asking the ECJ to impose constraints on their powers and freedom of action which are nowhere alluded to in the Treaties.

There are also practical issues to consider. What is to prevent any member, dissatisfied on any matter, to issue A.50 notifications willy nilly only to withdraw them at the last moment if they manage to gain some negotiating leverage by doing so. The EU would be in ongoing turmoil, not knowing which notifications are for real, and which were purely tactical. Political decisions are best left to the political institutions, and the ECJ would be reluctant to intervene unless some action is clearly in breach of the Treaties. The Council and Parliament have wide discretion within the Treaties to make political decisions, and that is as it should be. The rights of any one member state are not absolute, but exist only insofar as they are provided for in those treaties.

The more interesting question is whether the Council can accept a revocation 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. That would make any decision to remain subject to the whims of each and every one of the remaining 27 member states - just as it takes only one member to block the accession of a new member under A.49.

The alternative point of view is that as an Exit Agreement only requires a weighted majority to be accepted by the Council, so should a decision not to conclude one and instead terminate the exit process also only require a weighted majority vote? It is a pity the ECJ is not being asked to adjudicate on this issue.The bottom line depends on whether the EU and UK continue to be on good terms as the A.50 process nears its end and the UK decides it wants to remain in after all. If relationships have become very strained there is always a possibility that a blocking minority might object to accepting a withdrawal of an A.50 notification. That too is as it should be. Membership of a club should be dependent on the willingness of all parties to work constructively together and to accept obligations as well as entitlements.

The UK has not always demonstrated a willingness to do so over the past 45 years of membership. It would be ironic indeed if it was the EU which ultimately decided it no longer wished to have the UK as a member and blocked attempts to terminate the A.50 process. Most Council members have expressed a willingness and indeed an eagerness to welcome the UK to remain in the EU should the UK change its mind so this seems a very unlikely prospect. However the invocation of A.50 should not be a cost or risk free action, and the possibility that some other members would be more than happy to see the UK or some other "difficult" member exit should not be entirely discounted. Other members have rights too, and the ECJ most take cognizance of their rights as well.

In a subsequent comment I addressed Oliver Garner's points in relation to Article 68 of the Vienna Convention on the Law of Treaties (VCLT) and the norms of international law more generally:

It is difficult to see how A. 68 of the VCLT can be said to apply when France and Hungary are not even signatories. On the wider question of whether international law custom and practice dictates that a notification of withdrawal can itself be withdrawn until such time as it takes effect, it should be noted that while A.50 provides for a maximum two year negotiating period before a member actually leaves, extendable only by unanimous agreement, some of it's effects are immediate:


The UK has been excluded from some meetings of the Council, the Council and Commission have had to set aside a great deal of time and resources to conduct the negotiations, Sterling devaluation had led to some Irish food exporting companies with narrow margins having to go into liquidation, the Irish stock market is severely depressed despite a booming economy, and the political situation in Northern Ireland has been destabilized with little chance the devolved institution becoming functional again until and unless the border and wider ramifications for the Good Friday Agreement are addressed to the satisfaction of both communities.

Some of these effects may be irreversible even if the A.50 notification is eventually withdrawn. It is therefor only fair and reasonable that the EU27 have some say in whether an A.50 notification can be withdrawn or not, and indeed they may be inclined to put some conditions in place before agreeing to do so. The effects of an A.50 notification are therefore immediate, extensive, and sometimes irreversible, and the final act of leaving the EU is the end, not the beginning of the process set in train by the notification.

A.50 provides for an extension of the negotiating period by unanimous consent, and even explicitly provides for the situation where a member having given notice of leaving changes their mind - they have to re-apply for membership under A.49. You cannot simply short circuit that process by withdrawing an A.50 notification and acting as if it never happened. It is the gravest act a member can initiate and has immediate and inevitable consequences unless and until there is a change of heart by all parties to the Treaty.

Leaving is a political act, changing your mind about leaving is a political act, being allowed to rejoin is a political act. The CJEU will be most reluctant to interfere in the prerogatives of the Council, Parliament, and Commission to manage these processes, and the text of A.50 gives a clear, concise, and unambiguous description of how the process should be managed. It does not include giving the departing member a unilateral right to cause great upheaval in the Union only to change their mind if they don't like the outcome of the negotiations, or if they have managed to gain more advantageous terms of membership through threatening to leave.

Sometimes the most simple straightforward reading of a text is also the correct one.

Although there have been a few other comments on the blog, none addressed the points I made, and the conversation quickly degenerated into a point scoring exercise on the arguments for and against Scottish independence. Perhaps people here have more to contribute on the subject.

At its most general level, my argument is that the failure of A.50 to provide for an explicit right of withdrawal of an A.50 notification is damning. If the framers and signatories had wanted to provide such a right, a simple paragraph could have done so.

Oliver Garner argues that the Sovereign will of a nation has to be respected even when it changes its mind. But there are 28 sovereign nations involved in, and effected by this process, and they too have rights.

Arguing that the Vienna Convention on the law of Treaties and general custom and practice in international law provides for the rights of a change of mind are weak tea indeed, when France and Hungary are not even signatories, and just because many Treaties provide for a "cooling off period" does not mean that such a provision is applicable to a Treaty which specifically does not provide for one.

Finally, we must recognise a distinction between politics and law. The Treaties provide the European Council and Parliament a wide degree of discretion as to how they should conduct their business. The ECJ should only intervene when they are clearly acting outside their Treaty given powers.

Ultimately, allowing the UK to withdraw its A.50 notification to the EU Council is a political decision that only the Council, in agreement with the UK, can make. The issue which needs to be resolved, for me, is whether that decision can be made by weighted majority vote, or whether unanimity is required.

Display:
Other members have rights too,
Funny how many Brits, not only Brexiteers, harping about "the will of the people" seem to keep forgetting that the other 27 EU countries have rights too.
by Bernard on Tue Nov 27th, 2018 at 07:45:16 PM EST
I was surprised that a blog in the European Law Blog was written from such a UK centric point of view. The rights of other member states were never mentioned even though, as in the case of Ireland, they have already been very adversely effected by the A.50 notification.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Nov 27th, 2018 at 08:15:34 PM EST
[ Parent ]
Goes back to the UK's disbelief other countries and other peoples have functional agency (capable of action or intervention to produce a particular effect) or, in the worst cases, even exist.

The US suffers from the same cognitive dysfunction.

She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre

by ATinNM on Tue Nov 27th, 2018 at 08:31:54 PM EST
[ Parent ]
UK: There are other countries (other than the US)?
US: There are other countries?
by rifek on Wed Nov 28th, 2018 at 11:23:14 PM EST
[ Parent ]
Every country which participates in the World Series Baseball competition is a real country. (Only Canada are invited).

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 11:03:50 AM EST
[ Parent ]
Apparently the EU lawyers' agree with you.

She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre
by ATinNM on Tue Nov 27th, 2018 at 08:36:13 PM EST
The absence of disagreement is not evidence of agreement, or may we presume so?

Anyway the ECJ will eventually decide, although it may take a few weeks to do so.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Nov 27th, 2018 at 08:48:09 PM EST
[ Parent ]
No.

Better know your "English law", as Colbert might have said, if he weren't such a smart ass.

adhesion contract

## Rule of law is not well understood.

Diversity is the key to economic and political evolution.

by Cat on Tue Nov 27th, 2018 at 10:16:50 PM EST
[ Parent ]
full title, 4th edition
Black's Law Dictionary, Definition of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 1956 pp

Diversity is the key to economic and political evolution.
by Cat on Tue Nov 27th, 2018 at 10:24:37 PM EST
[ Parent ]
"Some Pig"
E. B. White, Charlotte's Web, 1952

Diversity is the key to economic and political evolution.
by Cat on Tue Nov 27th, 2018 at 10:29:31 PM EST
[ Parent ]
I make no claims to be a lawyer, but expect the ECJ to decide this case on the basis of EU, not English, law.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Nov 28th, 2018 at 05:08:08 PM EST
[ Parent ]
United Kingdom invocation of Article 50 of the Treaty on European Union
Differing views have been expressed on whether the UK's invocation of Article 50 can be revoked.

British government lawyers had argued that the Article 50 process could not be stopped.[77] An Irish court case challenging this view was later abandoned.[78] Lord Kerr has asserted that the Article 50 notification can be revoked unilaterally.[79]

UK barrister Hugh Mercer QC noted before Article 50 was invoked that: "Though Art. 50 includes no express provision for revocation of the UK notice, it is clearly arguable for example on the grounds of the duties of sincere cooperation between member states (Art. 4(3) of the Treaty on European Union) that, were the UK to feel on mature reflection that leaving the EU and/or the European Economic Area (EEA) is not in the national interest, the notice under Art. 50 could be revoked."[80]

US law professor Jens Dammann argues: "there are strong policy reasons for allowing a Member State to rescind its declaration of withdrawal until the moment that the State's membership in the European Union actually ends" and "there are persuasive doctrinal arguments justifying the recognition of such a right as a matter of black letter law".[81]

EU politicians have said that if the UK changes its mind, they are sure a political formula will be found to reverse article 50, regardless of the technical specifics of the law.[82] According to the German finance minister Wolfgang Schäuble, "The British Government has said we will stay with the Brexit. We take the decision as a matter of respect. But if they wanted to change their decision, of course, they would find open doors."[83]

On 29 March 2017, the EU Commission stated "It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification."[84] Similarly, the European Parliament Brexit committee headed by Guy Verhofstadt has stated that "a revocation of notification [by Article 50] needs to be subject to conditions set by all EU27, so that it cannot be used as a procedural device or abused in an attempt to improve on the current terms of the United Kingdom's membership".[85] [86] The European Union Policy Department for Citizens' Rights and Constitutional Affairs has stated that a hypothetical right of revocation can only be examined and confirmed or infirmed by the EU institution competent to this purpose, namely the CJEU. [87]

However, in July 2016 former German Supreme Court judge Udo Di Fabio had argued, on the basis of international law, that a triggering of Article 50 can be revoked: "in EU law, the declaration of intention to leave is not itself a notification of withdrawal; rather, at any time and at least until the Treaty becomes inapplicable, it can be retracted or declared to have become redundant".[88]

In October 2017, barrister Jessica Simor QC of the leading London law firm Matrix Chambers lodged a freedom of information request to the UK Prime Minister for disclosure of legal advice which, she claims, states that the UK government can withdraw the Article 50 application at any time before 29 March 2019; she notes that Article 50 provides only for notification of an intention to withdraw and contends that such intention can be changed at any time before actual withdrawal.[89]

In February 2018, a crowd-funded petition by a cross-party group of Scottish politicians for judicial review of the notice was rejected by Scotland's Court of Session, but in March the Court overturned that decision.

More clutching at straws. It is natural for lawyers to seek to extend their sphere of influence, but there is a difference between a decision being reversed by agreement, for political reasons, and it being reversed by one party, unilaterally, because it has an absolute legal right to do so. Legal rights have to be specified in law. A. 50 does not do so.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Nov 27th, 2018 at 09:05:44 PM EST
Legal rights have to be specified in law.

Especially in a civil law system.

by rifek on Wed Nov 28th, 2018 at 11:27:53 PM EST
[ Parent ]
International law is not a civil legal system...

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 11:05:33 AM EST
[ Parent ]
It can't be as heavily codified as a civil system, but it. acts more like a civil law system than a common law system, and the courts tend to have more of a civil law approach.
by rifek on Thu Nov 29th, 2018 at 01:49:20 PM EST
[ Parent ]
Yes, it is.

Diversity is the key to economic and political evolution.
by Cat on Sat Dec 1st, 2018 at 03:59:46 PM EST
[ Parent ]
I don't think the absence of revocation means anything but that the framers didn't think it through. If I remember the debate at the time, including a formal way of withdrawal was a gesture to the goverments of the countries with a more EU-sceptical population. But I don't think it was ever gamed out how it would go down.
by fjallstrom on Tue Nov 27th, 2018 at 11:16:59 PM EST
To the contrary: no provision in the law for revoking a duly issued, deliberate action to secede expresses agreement of the authors to reject the premise; in point of fact, the treaty expressly provides recourse for petitioners to the union --correction or remediation of remorse that might attend secession --in Art. 50 and 49. These provisions define exercisable action available of all members.

What is the premise that the authors rejected?

The possibility, or license, afforded any one party to arbitrarily abridge rights of all members who are parties to the contract; and the probability that such license encourages opportunities to coerce agreement to spurious privileges from members in good standing instead of political resolution by all members.

But here you (pl.) contemplating a false defense of anarchy, the necessity inherent in immediately vacating due process of the law as is convenient for the petitioner, which incidentally has expressed no remorse with reprieve from an act that is lawful and was legally constituted by the member state.

And let us be clear: the parties to international treaties are governments--specifically heads of state--not a governments' constituents.

Diversity is the key to economic and political evolution.

by Cat on Wed Nov 28th, 2018 at 01:11:17 AM EST
[ Parent ]
To me, what they meant - if anything - by not spelling out if an A50 declaration can be revoked or not, is not a question that can be answered by judicial reasoning. If they indeed meant something, it could be traced by asking the involved persons, reading their notes or transcripts of their discussions or reading or watching the debate at the time. Since I don't have access to the persons, their notes or transcripts, the debate at the time is all I have got.

Now the question of what they meant can of course be approached not as a historical fact but only as figure of speech, to be reached by reason alone, death of the author style. Then I would recommend calling it something else.

In the end, the Court will decide the case. And I think it is a folly to try to guess what they will decide based on reasoning that doesn't take into account who the judges are and what kind of legal tradition they are constructing on the EU level out of the different European ones. Maybe they will take the Vienna convention on conventions into account, maybe they will lean heavily on the historical record of what the contracting parties actually meant. Maybe they will grasp an opportunity to get out of actually deciding.

by fjallstrom on Wed Nov 28th, 2018 at 11:18:32 AM EST
[ Parent ]
Treaties tend to be drafted by legal specialists who would be well aware of the content of other Treaties such as the Vienna Convention and Treaties which contain a "cooling down period withdrawal clause". Putting in a clause to say that if a member decides within (say) 6 Months of issuance, to withdraw an A. 50 notification , they may do so would have been the easiest thing in the world and could have been achieved with one sentence.

It is difficult not to draw the conclusion that its absence is intentional.

But more important still than what the original framers or legal draughts-people intended is what the high contracting parties actually signed up to. Members which signed the Treaty without a withdrawal of notification clause could be forgiven for wondering how the ECJ could effectively add one in after their signatures had been procured.

Note that the issue in question is not whether an A.50 notification can be withdrawn, but whether it can be withdrawn unilaterally, without the agreement of the EU Council. The EU Council could be forgiven for not engaging seriously with any notice party until they had some sort of guarantee this was for real, and not just a tactical maneuver, to be revoked later.

Note also that in a previous case (Miller, if I recall), the UK government chose not to argue this point, with both parties accepting that an A. 50 notification, once issued, is irrevocable. The only people arguing that it might be are some Remainer Lawyers not acting for any member state government or party to the Treaty.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Nov 28th, 2018 at 05:34:16 PM EST
[ Parent ]
by ThatBritGuy (thatbritguy (at) googlemail.com) on Wed Nov 28th, 2018 at 10:29:43 PM EST
[ Parent ]
Thanks for this. I was aware of the general history, but have tended to discount its importance. Very few legal texts have only one author and most have to go through complex approval processes with possible minor tweaks along the way. Certainly the people with ultimate responsibility for approving a text may read it quite differently from the way the original author intended - even in cases where there was only one identifiable individual author.

I could claim ownership of all manner of policy documents for Diageo. In reality I "borrowed" a lot of ideas from elsewhere and any documents I produced had to go through lengthy many layered approval processes which might have tweaked them at some stage or meant something different to different people within the approval process. So even Lord Kerr may not be the initial author - he may merely have approved a text original written by some junior lawyer in the secretariat. Quite often you genuinely forget where you got your ideas from.

At the time Lord Kerr was head of the Convention secretariat that was trying to draw up a a formal EU Constitution - which was later rejected by referenda in France and Holland. Parts of that Treaty were later incorporated into the Lisbon Treaty - again a different context and time. Lord Kerr was anxious to provide a formal mechanism to disadvantage some dictator wanting to leave the EU in a huff - never imagining it would be the UK which was the first to invoke it.

All of which is a long way of saying that a text dreamed up in one circumstance with one set to intentions may end up serving a very different purpose  in another. The ECJ has the task of interpreting it in the current context, but must also be wary of producing an unwanted precedent for the future. Laws are generally framed to provide the institutions operating within their framework some discretion and freedom of interpretation.

It seems to me the very short, sparse, and clear style of A.50 provides the EU Council with considerable discretion. I doubt the ECJ will want to interfere with that. The EU tends to operate by consensus which gives individual members some scope to block initiatives, but much less to initiate actions against the wishes of others.

The more I read Lawyers prognosticating on this issue, the more I realise that lawyers are not politicians and have little ability to imagine the political ramifications of some of their ruminations. It would be crazy to allow an unregulated unilateral right to withdraw an A.50 notification after all the disruption and additional costs it has occasioned, not to mention the consequences of numerous members invoking and revoking A. 50  notifications for tactical purposes during other negotiations and disputes.

If the ECJ were to announce that an A.50 invocation is unilaterally revocable, I would be all in favour of the EC council deciding not to pay any heed to A. 50 invocations until they become irrevocable after 2 years. Let members who wish to leave just leave, and negotiate with them as third parties afterwards. The EU is actually doing them a huge favour by offering to negotiate interim and transitional arrangements to minimise disruption while negotiations are ongoing.

Not that the EU can expect to get any thanks for it.


Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 12:18:36 PM EST
[ Parent ]
Looking at the economic costs the UK has already endured makes me think it's not only the lawyers who aren't good at politics.
by Colman (colman at eurotrib.com) on Thu Nov 29th, 2018 at 12:22:51 PM EST
[ Parent ]
My understanding is that there was no Grand Legal Masterplan for the wording. It was a bit of an afterthought and dependent on some very specific circumstances, which are now historical.

So there is no detailed legal implication buried in the wording, because it was never considered likely enough to need more specific detail.

This does of course leave it open to interpretation by the ECJ. But - as I've suggested before - ultimately it's a political issue, not a procedural one.

If the political will is there, A50 will be revoked somehow. If it isn't, all kinds of challenges and obstacles will make it seem like an impossibility. Most likely there will be some toing and froing and the EU will demand a price - possibly a token one, possibly not - before agreeing.

But it's also worth pointing out that there are now multiple challenges to the legality of the referendum result, and if they succeed the basis for A50 - that it's invoked in accordance with a country's constitutional requirements - will no longer apply.

Leave are trying to argue that parliament's vote to invoke A50 supersedes and legitimises the result, even if it was illegitimate and possibly even criminal.

I think that would be unlikely to stand up to a challenge. In any case, at the moment it looks as if May will lose her vote, and her current "charm offensive" around the UK (oh my aching sides...) is actually some one-sided campaigning in preparation for a GE.

If so - good luck with that plan.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Thu Nov 29th, 2018 at 12:42:29 PM EST
[ Parent ]
Leave are trying to argue that parliament's vote to invoke A50 supersedes and legitimises the result, even if it was illegitimate and possibly even criminal.

I would actually agree with that argument. The referendum was purely advisory, and if it was illegitimately influenced, the worst you could argue is that Parliament got some bad advice before deciding to proceed. Parliament and the government are free to change their minds and have had many opportunities to do so - despite all the evidence of illegality in the run up to the referendum. This government now "owns" this Brexit deal, and I suggest only a new government or a referendum to change this government's mind can change that state of affairs.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 12:59:47 PM EST
[ Parent ]
It was sold to Parliament as "purely advisory."

It was sold to voters with the promise that Parliament would implement the decision - even though there was no specific plan, and no details of what "Leave" actually meant, and no constitutional basis for that promise.

It's not true that Parliament has had multiple opportunities to change its mind. The A50 vote was unique, and it was only after a referral to the judiciary that the "meaningful vote" amendment was even allowed a debate.

Throughout, May has acted despotically, using lies, inflammatory rhetoric, and bullying to force through policy, to shut down open debate, and to try to minimise the influence of suggested amendments.

At this point she's actively defying a Parliamentary vote to require her to reveal the full details of the legal advice she has received.

This has not been business as usual, nor has there been more than a pretence of allowing Parliament independent oversight of the process.

It's not so much that the government needs to change its mind, as May's entire regime needs to be cleaned out. She's clearly not successfully representing anyone except her own delusions - and possibly the business interests of her husband's employer, and of the semi-criminal regimes, like Russia, Israel, the Saudis, the fascist right in Europe, and the neocons in the US, that she likes to associate with.

It's tempting from the EU POV to use Brexit to teach the UK a lesson. But that's not a very nuanced view. The neocon/neoliberal/neofascist problem is world-wide, and killing this outbreak in the UK would do a lot to stop its spread elsewhere.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Thu Nov 29th, 2018 at 01:24:37 PM EST
[ Parent ]
Many thanks for this exchange of views, which I find fascinating even if I slightly disagree with you. The problem with not having a written Constitution is that it all depends, a bit, on the author's viewpoint. For all its claims of ancient tradition, the UK "constitution" is very crude and basic at best.

In reality the UK is a Parliamentary democracy where Parliament is effectively Sovereign. Referenda have only been used, rarely and relatively recently, to decide on EU membership issues and some electoral system and "regional" devolution issues, where Parliament found the issue too difficult or too regional to resolve.

While the formal position was always that EU related referenda were advisory, it would be a brave parliamentarian/party which would go "against the voice of the people". Nevertheless it was always a political rather than a legally binding decision to accept the result.

Personally I think referenda are generally a good thing and fill a massive void in a simplistic and crude first past the post single seat constituency system where there is little point in voting in most constituencies which are deemed "safe" for any party.

I suspect the high turn out in the last referendum was a huge sigh of relief that your vote in many "safe" constituencies actually mattered and would actually count towards the final result. Much of the vote was actually a protest vote against the system, austerity, and the Government, but c'est la Vie. Democracy doesn't always work in the way intended.

We in Ireland can act all smug in that we have had many referenda and know how they should actually work: They are for inserting very specific provisions in a written constitution with very specific effects so there is the least possible uncertainty as to what the real issue is all about.  A referendum on May's (or any other deal) would have the merit of being quite specific and unambiguous in its effects.

Obviously a government with a working majority can do a lot to impose its will on Parliament, on the order of business and what issues are put to a vote and which are not. The Fixed Term Act actually makes it very difficult to force a Prime Minister out mid-term - unless disowned by her own party. The DUP have said they will support te Conservatives on confidence issues even though they will render it paralysed on much else.

So we could be left with a lame duck Prime Minister leading a lame duck government drifting helplessly onto the "no-deal" rocks. The only alternative is for May to do a deal with Corbyn on a general election or a second referendum. To his credit, Corbyn has been quite clear: he wants a general election. The question is whether even a third of the Conservatives would be prepared to follow May down that route at the present time, as the Fixed Term Act requires a two thirds majority of Parliament to pass.

I suspect she could get that number - many are in safe seats - but they could be risking condemning the Conservative Party to Opposition for a generation, and even its displacement by the Lib Dems in the duopoly of power in Westminster. Perhaps the Remainers and Leavers in the Conservative Party hate each other enough to risk that outcome.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 03:01:51 PM EST
[ Parent ]
It's tempting from the EU POV to use Brexit to teach the UK a lesson.

Actually, no: very few people in the EU go along that line; and even less among EU governments and institutions, who recognized from day one that this would be bad for both sides and that Brexit agreements would be at best "damage control" (reiterated recently by D.Tusk).

This "lesson" (or "punish") thing is actually a frequent Brexiteer's theme, if only to rile up the base once it becomes clear that the EU is not letting them having their cake and eating it.

by Bernard on Thu Nov 29th, 2018 at 07:30:50 PM EST
[ Parent ]
The purpose of "judicial reasoning" in civilized [!] "jurisdictions" is to interpret law: to deliberate and "decide" findings of fact and findings of law preceding and applicable to resolution of any one civil or criminal dispute
.
.
.
since the Roman empire ruled [!] the known world ("what kind of legal tradition") with coloni, tribunes, magistrates, and property [!] rights [!] granted "citizens" by the state [!]. And let us note that the Roman state, republics and principates, developed  an exceedingly fine hierarchy before it "devolved" to a constellation of feudal landlords and autocratic christian warlords across "eurasia".

Jurisprudence by the ECJ, its "parts", its constitution(s), and is collections of common law is no different from the ancient tribunals in their regard for status quo. Let us note the adoration of the Latin in EUR-Lex, signifying the root.

What do I mean by status quo? Foremost the antithesis of anarchy and arbitrary rule of "men"; rather the absolute authority of government however that is constituted by legislators. Of course, lawyers jealously guard their dictionaries, the lexicons. This is the tool of their trade which is litigating interpretations of law exceedingly fine in its composition and complementarities.

What is and what is not codified.

## Rule of law is not well understood.
## Separation of powers is not well understood.
## Democracy is not well understood.

Diversity is the key to economic and political evolution.

by Cat on Wed Nov 28th, 2018 at 07:43:59 PM EST
[ Parent ]
The Roman empire didn't cover the known world, and not even the whole of the EU, and it didn't so much devolve as being overrun by waves of invaders that combined what they found useful in Roman law with their own traditions.

Add Christian church, renaissance, reformation, enlightenment, the growth of the modern state with its claim on monopoly on violence and then the whole messy 19th-20th century history, and yes you do end up with different legal traditions. Not least when it comes to legal interpretation. Which can easily be seen by reading articles on legal interpretation in different European languages, for example on Wikipedia.

by fjallstrom on Thu Dec 6th, 2018 at 05:56:12 PM EST
[ Parent ]
The world known to "classical" Rome and "classical" Greece indeed constitutes the "known world" in antiquity.

Eurocentric contemplation of all humanity that was and will be to this very day defines truth, justice, and history, does it not?

Diversity is the key to economic and political evolution.

by Cat on Thu Dec 6th, 2018 at 07:50:06 PM EST
[ Parent ]
Huawei's CFO Arrested at U.S. Request, Sparking Outrage in China

What other explanation, or rationale, would you offer for such a police action?

Diversity is the key to economic and political evolution.

by Cat on Thu Dec 6th, 2018 at 09:22:09 PM EST
[ Parent ]
How did "europeans" acquire literacy in the form known as alphabet?

Diversity is the key to economic and political evolution.
by Cat on Thu Dec 6th, 2018 at 07:53:20 PM EST
[ Parent ]
but it did include Turkey.......
by gk (gk (gk quattro due due sette @gmail.com)) on Thu Dec 6th, 2018 at 07:53:24 PM EST
[ Parent ]
formerly-known as Anatolia, formerly-known as (tribal) "Asia", formerly-known as ... o, pick a "kingdom", "tyranny," "democracy" --say, Corinth or Troy, these coloni -- claimed and tentatively possessed by classical "Europa". Greeks.

Up and down the "Levant" and around seas of piracy.

This M&A operation has been going on for millennia.

Diversity is the key to economic and political evolution.

by Cat on Fri Dec 7th, 2018 at 07:34:10 PM EST
[ Parent ]
An approach to the "issuing A.50 notifications willy nilly only to withdraw them at the last moment" difficulty could be that the EU declares in advance that the only sort of xxEXIT is with no deal. The EU refuses to spend any time or energy "negotiating" with an exiting country until it is actually gone.
by asdf on Wed Nov 28th, 2018 at 12:50:05 AM EST
That is not a true statement.

Rather, UK gov has been unable over several decades of participation in union government to obtain allies for its peculiar point of views about EU political processes governing distribution of booty among member states -- some called the campaign "EU reform."

Now, whether or not, EU political process are as "neoliberal" as UK government would want is another issue of arguments altogether.

Diversity is the key to economic and political evolution.

by Cat on Wed Nov 28th, 2018 at 01:18:41 AM EST
[ Parent ]
This whole Twitter thread is the best synthesis I've seen of the various arguments of yesterday (at least, the Twitter format seems to fit well with my attention span and gestalt cognitive abilities)


...

And this remark from the bench is intriguing...

Could it be that the ECJ is about to enter European collective consciousness by legislating from the bench?

If so, rather a good thing...


It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

by eurogreen on Wed Nov 28th, 2018 at 07:47:34 AM EST
Thanks for those links.

If I understand the arguments back and forth the EU institutions appear inclined to treat this from a consequence perspective: how should the process be, and what happens under what rules. And that is good, because then at least the EU is using Brexit to construct a better exit process.

Later tweet from the same account says the court will deliver a non-binding opinion on Tuesday. Which is really fast.

by fjallstrom on Wed Nov 28th, 2018 at 11:42:34 AM EST
[ Parent ]
"Marbury v Madison"

archived

Diversity is the key to economic and political evolution.

by Cat on Wed Nov 28th, 2018 at 08:02:19 PM EST
[ Parent ]
Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court

Global Warming - distance between America and Europe is steadily increasing.
by Oui on Wed Nov 28th, 2018 at 09:14:59 PM EST
Helpful and not helpful
for readers who are not familiar with the Article text of the US Constitution which establish definitively, not only the three "branches" of the federal government, but the form of government required by US states (republican representation of constitutional law ratified within each). The extent to which and limitations on state sovereignty enjoined by their US constitutional federation (formerly confederation) --by comparison to European conceptualization of national sovereignty and TEU-- is a historically controversial topic in the USA.

The US Constitution Article III expressly establishes one Supreme Court. (The Bill of Rights 1-28 --citizens', "civil rights"-- amends the articles.) and its "inferior courts" (or "parts", literally identified in district courts' corridors, to which I have referred) as well as federal jurisdiction, including the establishment of its "parts" in the states (distict and circuit courts) and states' supreme courts. Marshall's distinction as the first chief justice lies in the manner --through diverse case reviews-- by which the SCOTUS implemented its US constitutional authority, created by US Congress of legislators. In a sense, the SCOTUS preserves state sovereignty and "democratic values" by instituting and respecting the appellate review processes; litigation "bubbles up" to the writ of last resort.

Lacking a glossary on US Constitution Articles, introduction to novel terminology such as "infraconstitutional law" or "constitutional court", could confuse a reader.

Diversity is the key to economic and political evolution.

by Cat on Wed Dec 5th, 2018 at 06:04:12 PM EST
[ Parent ]
Interview with Prof Franz Mayer, European Law.

Can the British simply cancel Brexit? - Süddeutsche

... A nation state can say: we want to leave, we have to ask no one. At the same time, the rule wants to establish clarity. And that's not really compatible with one state controlling the exit procedure unilaterally.

Q: The price of having the option to exit is therefore: one can declare it unilaterally but the decision cannot be revised unilaterally?

That's how I would see it. This is not mentioned explicitly [in A50] but it seems plausible according to how it came about. Anything else would give the exiting member all possibilities. ... to use as leverage. ... Or it could undermine the 2 year span: negotiate for 1 and a half years, then take the exit back and then trigger A50 again. The time limit would be meaningless. ...

... There are people who say that [A50 can't be stopped]. But A50 allows in consensus with the EU members to extend the period. Then it must be legally possible to stop the whole process but in consensus with the remaining member states. ...

Q: Do you expect the ECJ to eventually decide politically - to make the exit from Brexit possible?

ECJ has to make a legal decision while the political situation is unclear. Which makes it even more political. ... could refuse the case because it is still hypothetical. ...a middle way to not give the British unilateral power over the process... E.g. it could say that the initial triggering of A50 had an absence of intent.

Q: That the British were quasi legally of unsound mind?

Something like that ... I believe they don't want to make a possible political avenue [for canceling Brexit] impossible. But if they were to strictly adhere to the formal legal text they'd have to say: there is nothing about Exit from Brexit thus it is impossible.

... If another member were to say: you can stay but without the rebate. I'm not sure it'd go smoothly if the British would say: we didn't mean it like that, we'll stay onboard. Too much has happened for that.



Schengen is toast!
by epochepoque on Thu Nov 29th, 2018 at 02:51:44 AM EST
".. of unsound mind."

Seems plausible! Yet where to draw the line for today's politicians? 😊

Global Warming - distance between America and Europe is steadily increasing.

by Oui on Thu Nov 29th, 2018 at 07:54:51 AM EST
[ Parent ]
If a revocation of Article 50 is deemed legal (unilateral or otherwise) then the Article becomes meaningless. In such case I would expect the Lisbon treaty to be amended to patch the loophole.

You might find me At The Edge Of Time.
by Luis de Sousa (luis[dot]a[dot]de[dot]sousa[at]gmail[dot]com) on Fri Nov 30th, 2018 at 01:05:40 PM EST
[ Parent ]
Why? You could imagine a world in which a country sat down, had a sensible debate, formulated a plan, decided what outcome they wanted and initiated the A50 process to leave the EU perfectly sensibly.

I'm agog at the idea that the current UK clusterfuck would somehow act as an example to be followed by other countries or leaders. It's going to eat two, maybe three PMs, multiple ministers, damage the economy in the medium to long term,  destroy parties and lead to more bloodshed anyway you cut it, even if A50 is withdrawn, for precisely zero benefits from the EU.

If it was a negotiating tactic it was a spectacularly bad one.

It's a cautionary tale.

by Colman (colman at eurotrib.com) on Fri Nov 30th, 2018 at 01:30:52 PM EST
[ Parent ]
I think there is a world of difference between a unilateral right to withdraw and a consensual agreement to withdraw. The EU Council almost always acts by consensus, and anything is doable by consensus provided it is not explicitly disallowed in law.

I am actually quite alarmed by the suggestion in the quote below: "Lenaerts made novel suggestion of a "reverse QMV" decision " whereby the UK could Cancel the A.50 notification and the EU Council could only reject their cancellation by QMV.

I can think of no other instance where an individual member can make a major decision effecting all and the onus is in the EU Council to muster a QMV to prevent it. Again we are in danger of inventing rights and procedures which simply do not currently exist.

In practice, I can see no difficulty with the EU Council and the UK agreeing to cancel Brexit especially if only a QMV is required. But the tradition of action by consensus should be upheld.

I am not an expert on the Treaties and case law which mandate how the EU Council should operate, so perhaps someone can correct me here. However the long term practice has been decision by consensus, and I think that practice should be upheld.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Nov 30th, 2018 at 02:47:26 PM EST
[ Parent ]
As a FYI there's currently a High Court case which claims that A50 has no constitutional foundation, because May was well aware of Leave's criminal overspending before the A50 debate, and may have actively suppressed an investigation into it.

This would certainly make the subsequent Parliamentary decision void, and probably also counts as misleading Parliament.

PMs tend to get away with misleading Parliament - see also Blair - but it's not absolutely certain that May would.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Tue Dec 4th, 2018 at 02:22:27 PM EST
[ Parent ]
A few clues today about how ECJ sees the A50 puzzle. A truly unilateral revocation seems to be excluded on basis EU needs a mechanism to ensure the system isn't abused. Lenaerts made novel suggestion of a "reverse QMV" decision to reject rather than approve a cancellation

— Mehreen (@MehreenKhn) November 27, 2018

A suggestion that a revocation should not be unilaterally possible - to prevent abuse - but that it could be accepted by the EU Council by qualified majority vote: More or less in line with my argument... or does it mean the EU Council would have to muster a QMV to actually reject a cancellation. That would be a tall order.


Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 03:41:18 PM EST
That's my takeaway, and I hope it's what he will advise next week.

The EU is some sort of meta-state (some would say, a metastasis).

If it were a thing of mere intergovernmental treaty, then the principle of a cooling-off period for exit would apply pretty much automatically, and the UK would need no permission to change its mind and stay in.

If it were a federal state, then unilateral secession would certainly not be an automatic right (no more than it is for Catalonia or Scotland); the consent of the federation would also be required.

We have a rule for leaving, and no rule for remorse. It seems fair and reasonable that the ECJ should determine one. (I aspire to fairness and reason, however unfashionable that may be)

It would also be richly ironic if May had to eat her hat and humbly request leave to remain... based on  ECJ advice.

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

by eurogreen on Thu Nov 29th, 2018 at 04:37:51 PM EST
[ Parent ]
Independent
A fresh Brexit referendum could be held by the end of May and allow Britain's exit to be sewn up by the summer, Justine Greening has said.
By which point they are already out of the EU....
But Ms Greening said a referendum could easily be held within six months, which would result in a short delay to the Brexit process to allow the government to enact the result of the new vote.
And the EU will agree to this?
by gk (gk (gk quattro due due sette @gmail.com)) on Thu Nov 29th, 2018 at 06:08:51 PM EST
And after each referendum the ECJ will deliberate the fair and appropriate periods between referenda and revocation (which ever comes first). Which is "legislating from the bench".

Diversity is the key to economic and political evolution.
by Cat on Sun Dec 2nd, 2018 at 12:44:20 PM EST
[ Parent ]
Donald Tusk: No deal or no Brexit if UK parliament rejects May's deal
"The European Union has just agreed an orderly divorce with the United Kingdom," Tusk said. "A few days before the vote in the House of Commons, it is becoming more and more clear that this deal is the best possible, in fact the only possible one."
"If this deal is rejected in the House of Commons," Tusk said, the only options remaining would be "no deal or no Brexit at all."
"I want to reassure you that the EU is prepared for every scenario," he said.

This is not an improvised or casual position, that's not his style. We can infer that Tusk is telling us that the EU Council is prepared to countenance cancelling Brexit.

But don't let me spoil the fun!

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

by eurogreen on Mon Dec 3rd, 2018 at 04:22:01 PM EST
Cancelling Brexit is the easy, status quo, option. The real question is whether they are really prepared for a no deal Brexit, and all the disruption and bitterness that could cause...

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Dec 3rd, 2018 at 04:24:56 PM EST
[ Parent ]
He, and many other politicians and officials, have repeated that since A50 notification.
by Colman (colman at eurotrib.com) on Mon Dec 3rd, 2018 at 05:11:47 PM EST
[ Parent ]
No.

(This was another edition of easy answers to difficult questions.)

by Bjinse on Mon Dec 3rd, 2018 at 10:17:43 PM EST
You might want to tell that to the Advocate General.
by Colman (colman at eurotrib.com) on Tue Dec 4th, 2018 at 08:37:07 AM EST
[ Parent ]
Ah. What is the secret legal advice that May would rather die than reveal to Parliament as she must?
Come on. You know the best goss.

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
by eurogreen on Tue Dec 4th, 2018 at 09:30:23 AM EST
[ Parent ]
The UK can unilaterally abandon the article 50 process, a senior adviser to the European court of justice (ECJ) has said, in a significant boost to anti-Brexit campaigners.

Campos Sánchez-Bordona said he believed EU law allowed the UK to revoke article 50 without requiring the formal agreement of the European commission or other EU member states.

In his formal opinion, Sánchez-Bordona said it was essential MPs knew they could stop the Brexit process, dismissing the UK government's claims the issue was hypothetical.



I used to be afew. I'm still not many.
by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Tue Dec 4th, 2018 at 09:47:43 AM EST
[ Parent ]
While the opinion from Sánchez-Bordona is not binding on the judges, it is unusual for the ECJ to reach a decision that contradicts the advice of an advocate general.


I used to be afew. I'm still not many.
by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Tue Dec 4th, 2018 at 09:50:14 AM EST
[ Parent ]
So can they revoke it and then immediately submit another one, thus gaining more time? If so, why all this talk about a few months extension?
by gk (gk (gk quattro due due sette @gmail.com)) on Tue Dec 4th, 2018 at 09:54:00 AM EST
[ Parent ]
FT
Cancellation should be considered valid as long as the withdrawing government notifies the European Council -- the body of EU governments -- and "does not involve an abusive practice".


It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
by eurogreen on Tue Dec 4th, 2018 at 10:00:09 AM EST
[ Parent ]
No ... errr not yet
However, that possibility of unilateral revocation is subject to certain conditions and limits. First, like the notification of the intention to withdraw, the unilateral revocation must be notified by a formal act to the European Council. Secondly, it must respect national constitutional requirements. If, as is the case in the UK, prior parliamentary authorisation is required for the notification of the intention to withdraw, it is logical that the revocation of that notification also requires parliamentary approval. There is also a temporal limit on the possibility of revocation, since revocation is possible only within the two-year period that begins when the intention to withdraw is notified. The principles of good faith and sincere cooperation must also be observed, in order to prevent abuse of the procedure laid down in Article 50 TEU.
theoretically

< wipes tears >

Diversity is the key to economic and political evolution.

by Cat on Tue Dec 4th, 2018 at 07:44:40 PM EST
[ Parent ]
The principles of good faith and sincere cooperation must also be observed, in order to prevent abuse of the procedure laid down in Article 50 TEU.

Bookmarked.
by Bernard on Tue Dec 4th, 2018 at 09:22:55 PM EST
[ Parent ]
Only a lawyer could have dreamed that one up! Can you imagine a member state being prosecuted for lacking in good faith or sincere cooperation? Me neither!

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Dec 5th, 2018 at 02:24:51 PM EST
[ Parent ]
The whole Brexit thing has been full of "good faith and sincere cooperation" from the get go.
(sorry, I'm being sarcastic)
by Bernard on Wed Dec 5th, 2018 at 07:21:42 PM EST
[ Parent ]
OK! So the "full Brexit legal advice provided by the attorney general to the cabinet" undoubtedly says the same thing.

It's now a bit redundant to defy Parliament on that, so I suppose May will cave on that.


It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

by eurogreen on Tue Dec 4th, 2018 at 09:58:51 AM EST
[ Parent ]
Maybe it says A50 notification wasn't given in accordance with constitutional requirements. Who knows?

Wouldn't that be hilarious?

by Colman (colman at eurotrib.com) on Tue Dec 4th, 2018 at 10:16:08 AM EST
[ Parent ]
There is no opinion from the Advocate on merits of lawful or legal constitutional procedure of a member state. He defers to the judgment of the member state's government.

Diversity is the key to economic and political evolution.
by Cat on Tue Dec 4th, 2018 at 07:50:21 PM EST
[ Parent ]
but the subject here is the UK attourney general's advice to Cabinet. That the Government has been judged in contempt of the Commons for withholding.

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
by eurogreen on Wed Dec 5th, 2018 at 07:32:04 AM EST
[ Parent ]
The HISTORIC contempt motion remediates Tory gov's obstruction of parliament. Pro forma Crisis Averted AS TO any and all allegations forthcoming that Tory gov spoiled the votes 11 Dec ... until further notice.

Again: The event which has not occurred is petition to High Court or ECJ by a UK member in good standing that Tory gov violated a UK "constitutional" right of the member.

Theoretically.

Diversity is the key to economic and political evolution.

by Cat on Wed Dec 5th, 2018 at 04:58:53 PM EST
[ Parent ]
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Dec 4th, 2018 at 06:11:21 PM EST
a long footnote

Diversity is the key to economic and political evolution.
by Cat on Tue Dec 4th, 2018 at 07:45:37 PM EST
[ Parent ]
or a short summary of a long opinion!

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Dec 4th, 2018 at 07:52:51 PM EST
[ Parent ]


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