An Alternative to Brexit: The Judgment in Wightman

Wightman and Others v Secretary of State for Exiting the European Union (C-621/18, EU:C:2018:999, 10 December 2018)

Brexit is a big mess. It is “a powerful acid” and is a huge economic and bureaucratic nightmare. Going through with it in the hope that normality can be restored to British politics is equated with “howling at the moon”. But Theresa May is “determined to deliver Brexit, and determined to deliver on time – on March 29 2019.” With very little time left, she emphasises that “the clock is ticking” and politicians must “put aside our differences” in the national interest. Nevertheless, on the international stage May intends to be belligerent and the crusader in her is keen “to battle for Britain in Brussels” because she is “armed with a fresh mandate”. Conversely, to avoid the impending calamity, a softer option does exist because the Wightman ruling permits the UK to freely and unilaterally revoke the 29 March 2017 notification of its intention to leave the EU: a sea change from the reasoning embraced by the Supreme Court in Miller [2017] UKSC 5 which was decided on the basis that once notice under article 50 of the Lisbon Treaty/TEU was given the government pulled the trigger which caused the “bullet to be fired” with the result that it “will hit the target and the Treaties will cease to apply”. Yet the CJEU held that the revocation of notice, decided in line with the UK’s own national constitutional requirements, would mean that the UK remains in the EU under terms that are unchanged regarding its status as a member state.

Hence, the ruling presents a convenient escape of last resort for the UK if all else fails. Under article 50, after notifying the European Council, the withdrawing member state must negotiate and conclude a withdrawal agreement with the EU. The EU Treaties then no longer apply to the exiting member state from the commencement of the withdrawal agreement or, failing that, two years after giving notice of the intention to withdraw and any possible extension. These proceedings trace their roots to a petition for judicial review in Scotland and the referring court pointed out that the answer would enable members of the House of Commons to know, when exercising their vote on a withdrawal agreement, whether the third option of revoking notice under article 50 existed in addition to the two other options of withdrawing from the EU with a deal or withdrawing from the EU without a deal. The petitioners were maligned and portrayed as traitors to the UK and continue to be attacked for their political views on remaining in the EU. However, in reality they are true patriots who wish to end the ongoing insanity that is being manifested by the mafia blindly wanting to carry out Brexit at any cost.

Reference from the Court of Session

Essentially, the petitioners wanted to know whether it was still possible for the UK to unilaterally revoke the notice contemplated by article 50 before the expiry of the two-year period stipulated by that provision. Indeed the result would be that if the UK’s notice of withdrawal were revoked, the UK would remain in the EU. Some difficulties arose at first instance about the hypothetical nature of the question. Equally, concerns also arose that these proceedings encroached upon parliamentary sovereignty and that the matter was outwith the national court’s jurisdiction.

However, things were different on appeal and the Court of Session, Inner House, First Division took the view that it was neither academic nor premature to ask the CJEU whether it is legally possible, for a member state, to revoke unilaterally the notification made under article 50(2) and to remain in the EU. Uncertainty needed to be minimised and clarity provided by the CJEU would surely enable MPs to make an informed choice about exiting the EU without a deal, with the deal concluded or to revoke notice and remain in the EU. Therefore, the Court of Session, Inner House, First Division (Scotland), stayed proceedings and referred to the CJEU the following question for a preliminary ruling:

Where, in accordance with article 50 [TEU], a member state has notified the European Council of its intention to withdraw from the EU, 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?

Since they are always extremely sore losers, the government sought to appeal the decision to make the reference for a preliminary ruling and the application was refused. Thereafter, the Supreme Court flatly declined to interfere with the Scottish court’s decision to make a reference. The court held that the Court of Session would give judgment in light of the preliminary ruling and only then will there be a final judgment in these proceedings.

Advocate General Campos Sánchez-Bordona

The AG proposed that the CJEU should rule that article 50 allows the unilateral revocation of the notification of the intention to withdraw from the EU and it is possible to revoke the notice until the negotiation of the withdrawal agreement is formally concluded.

He confirmed that the revocation of the withdrawal notice effectively opened up “a third way, namely remaining in the European Union in the face of an unsatisfactory Brexit.” Significantly, the availability of an avenue of this nature enabled Parliament to call upon the UK government to revoke notice of the intention to withdraw, so that the UK could remain party to the Treaties establishing the EU and a member state of the EU.

The Court of Justice (Full Court)

The full court ruled that when a member state, such as the UK, has notified the European Council of its intention to withdraw from the EU, it is totally free to revoke the withdrawal notification unilaterally. In other words, the UK can cancel Brexit to save its skin.

The possibility to do so exists as long as the withdrawal agreement concluded between the EU and the UK has not yet entered into force or, in the absence of such an agreement, for as long as the two-year period from the date of the UK’s notification of the intention to withdraw from the EU, and any possible extension of notice, has not expired. The CJEU’s conclusion was also corroborated by the Vienna Convention on the Law of Treaties 1969 whereby it is possible to revoke a treaty “at any time before it takes effect”.

Since no express provision governs revocation of the notification of the intention to withdraw, revocation is subject to the rules laid down in article 50(1) for the withdrawal itself. Consequently, the revocation may be decided unilaterally.

The revocation decision must be reached after a democratic process in line with national constitutional requirements. The revocation must be an unequivocal and unconditional decision. It must be communicated in writing to the European Council.

Overall, a revocation of this nature confirms the EU membership of the member state in question under terms that remain unchanged in relation to its status as a member state and concludes the withdrawal procedure by bringing it to an end. From that angle, despite all the ongoing chaos, the UK remained in command of its own destiny and could take back control at its own convenience.

Given that article 50(1) is clear that any member state may decide to withdraw from the EU in accordance with its own constitutional requirements, it was only natural that there was no need for the departing state to act “in concert with the other member states or with the EU institutions.” Therefore, departing from the EU is a decision for the UK alone, in accordance with its constitutional requirements, and “depends solely on its sovereign choice.” Revoking notice to exit the EU is a sovereign decision by a member state to retain its EU membership: this status is not suspended or altered by the notification, subject only to the requirements of article 50(4) TEU (i.e. that the withdrawing member state shall not participate in the EU decision-making process regarding the withdrawal agreement).

Observably, article 50(2) and (3) stipulate the clear procedure to be followed if a member state wants to withdraw. Essentially, this is a three-stage process and in RO (C‑327/18 PPU, EU:C:2018:733), the CJEU held that the procedure consists of (i) notification to the European Council of the intention to withdraw, (ii) the negotiation and conclusion of an agreement setting out the arrangements for withdrawal, taking into account the future relationship between the exiting state and the EU, and (iii) the actual withdrawal from the EU on the date of entry into force of that agreement or, failing that, two years after the notification given to the European Council – unless together with the exiting state, the European Council unanimously decides to extend the two-year period.

The CJEU rejected the analogy contended for by the Commission and the Council between revocation of withdrawal and extension of the two-year notice period in article 50(3) and held that revocation “is fundamentally different” and must not be confused with a request by which the UK might request the European Council to extend the two-year period. That course of action would require the unanimous consent of the EU27 in whom the specific power to extend is vested.

Two objectives are pursued by article 50. First, it enshrines the sovereign right of a member state to withdraw from the EU. Second, it establishes a procedure to enable such a withdrawal to take place in an orderly fashion. Significantly, the CJEU was of the view that:

55. After its withdrawal from the EU, the member state concerned may ask to rejoin, under the procedure set out in article 49 TEU.

The text of article 50 does not explicitly address the subject of revocation and it neither expressly prohibits nor expressly authorises revocation. As the AG noted it follows from the drafting of article 50(2) that a member state which decides to withdraw is to notify the European Council of its “intention”, a term which is “by its nature, neither definitive nor irrevocable.”

Observably, both the TEU and the TFEU have the purpose the creation of an ever closer union among the peoples of Europe and the EU also aims to eliminate the barriers which divide Europe. Similarly, the sacrosanct values of democracy and liberty are shared by the member states and, as held in Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461), “form part of the very foundations of the EU legal order.”

As stated in article 2 TEU, the member states share a set of common values on which the EU is founded, namely respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Article 49 TEU is clear that the member states have freely and voluntarily committed themselves to those values. Reciprocity underpins the system and as shown by Minister for Justice and Equality–Deficiencies in the system of justice (C‑216/18 PPU, EU:C:2018:586):

63. … each member state shares with all the other member states, and recognises that those member states share with it, those same values.

Key in the ruling is the importance of the rights of all EU citizens. Invoking the decisions in Grzelczyk (C‑184/99, EU:C:2001:458), Zhu and Chen (C‑200/02, EU:C:2004:639) and Rottmann (C‑135/08, EU:C:2010:104), the court reiterated that EU citizenship is intended to be the fundamental status of nationals of the member states. Clearly the withdrawal of a member state from the EU inevitably produced a considerable impact on the rights of all EU citizens including, among other things, the right to free movement of both the nationals of the exiting state and nationals of other member states. With that in mind the CJEU judged that:

65. In those circumstances, given that a state cannot be forced to accede to the EU against its will, neither can it be forced to withdraw from the EU against its will.

Ultimately it would be inconsistent with the EU Treaties’ purpose of creating “an ever closer union” among the peoples of Europe to force the UK’s withdrawal if it elects to revoke the notification of its intention to withdraw from the EU after a democratic process. The court found that to make the right to revoke subject to the unanimous approval of the European Council, as the Commission and Council proposed:

72. … would transform a unilateral sovereign right into a conditional right subject to an approval procedure. Such an approval procedure would be incompatible with the principle that a member state cannot be forced to leave the EU against its will.

Comment

In presenting Seven Brexit Endgame scenarios, the Bingham Centre for the Rule of Law explains “revocation remains a live option in legal terms, despite seeming politically implausible.” While an “unequivocal and unconditional” letter to the European Council will suffice in order to revoke article 50, the outcome in Miller shows that the government is unlikely to be able to rely on the prerogative for the purposes of revocation. Moreover, since Parliament has already passed the EU (Withdrawal) Act 2018 showing its express legal intent to exit from the EU, it is likely that the government would need to enact legislation in order to gain the authority to submit a letter revoking notice to withdraw. However, it will still be possible for the UK to retrigger article 50 because the ruling in Wightman leaves no doubt that “revocation brings the withdrawal procedure to an end”.

The upshot of retriggering article 50 will be that the withdrawal period will run afresh and, as pointed out by the Bingham Centre, such repetitious and abusive behaviour will call the UK’s sincerity into question because co-operation among member states would be thwarted and multiple article 50 notifications may well result in proceedings against the UK in the CJEU.

On 15 January 2019, Parliament voted against the withdrawal agreement by 432/202 and May’s measly government made history by suffering the biggest ever defeat inflicted on a sitting government. But unfazed by all this, after licking her wounds, the prime minister managed to keep crashing out of the EU without a deal on the table. Mrs May is presently playing a game of chicken with the EU27 and by engaging in brinkmanship she is hoping that they will blink first.

However, EU leaders are not willing to reopen the withdrawal agreement and time is of the essence. Virtually every sphere of life will be adversely affected if the UK crashes out of the EU in a blind cliff-edge Brexit and there are no known benefits of a blind Brexit.

The “backstop” – an insurance policy designed to avoid a hard border between Northern Ireland and the Republic of Ireland – remains the stumbling block. The attorney general’s advice to the government, which was only published after the government was found to be in contempt of Parliament, was very clear that the backstop is a permanent arrangement. The search for a seamless border (guaranteeing peace) in Northern Ireland is ongoing and architects of the peace process are predicting devastating consequences if there is no deal.

Despite the fact that the Brady amendment seeks to replace the backstop with alternative arrangements, the prime minister now knows that the EU will not bin the backstop but she does still insist that “changes” to the controversial mechanism must be made to avoid no-deal; dubbed the “mother of all messes” by its critics. Indeed, the majority of the House of Commons does not support leaving the EU without a deal but the government is making it clear that the only way to avoid no-deal is to vote in favour of a deal. The government is in difficulties because mass resignations in cabinet are also on the cards and so as to appease europhile ministers – who want to delay Brexit – the prime minister is expected to plead for more time so that she can procure changes to the withdrawal agreement. The problem posed by the mass resignations was kept at bay in the past by assurances that disgruntled ministers would have an opportunity to block no-deal. Now in the face of pressure by the shadow Brexit secretary Kier Starmer, the communities secretary James Brokenshire has said that MPs will have an opportunity to stop a no-deal departure by 27 February 2019: although this is different from a meaningful vote on a (new) deal.

Revocation looks unlikely because of the dictatorship of the 51.9 per cent and an extension of article 50 might be on the cards. Otherwise a hard Brexit is bound to become a reality. Indeed, extending article 50 requires the unanimous consent of European Council whose president Donald Tusk recently remarked that there is a “special place in hell” for those who stirred up emotions in favour of Brexit but had no plan to deliver it. Despite Tusk’s tantrum it is impossible to disagree with him that the likes of Nigel Farage, Boris Johnson and Jacob Rees Mogg and other charlatans of their ilk have no idea about how to limit the serious damage caused by Brexit. Farage, the high priest of no-deal, is vying for control of the new Brexit Party so that he can reclaim the political limelight. The divisive figure is adamant that the unprincipled and venal individuals subscribing to the no-deal option will vehemently oppose an extension of article 50 for further negotiations and he has wickedly predicated his political mumbo jumbo on the lie that: “In defence of democracy, we stand ready for battle.” Sadly the government’s stance is such that the voice of the 48.1 per cent has effectively been silenced and even remainers of the past have conveniently reinvented themselves as leavers in May’s cabinet.

Significantly, even with UK/EU deal, an extension of article 50 is necessary because extra time will be required to pass legislation relating to immigration, fisheries, trade, heath care, agriculture and financial services (and also approximately 600 pieces of secondary legislation). However, Theresa May thinks that extending article 50 serves “no purpose” and she is adopting a strategy to run down the clock instead.

Naturally, everyone is concerned about the future. Legal pundits are predicting a no-deal Brexit in any event because the ongoing chaos will result in the outcome that the European Union (Withdrawal Agreement) Bill will not make it through Parliament in time for the UK to leave the EU with “a deal, on 29 March, or at any point.” As for the EU Settlement Scheme, no-deal will mean that only those EU citizens resident in the UK by 29 March 2019 will be eligible to apply and secure their status in UK law (rather than the more generous deadline of June 2021 in the event of a deal).

As part of the government’s no-deal Brexit planning, a new “European Temporary Leave to Remain in the UK” (ETLR) for 36 months is also in the offing and this form of leave will allow those who arrive after 29 March 2019 to work and study in the UK. ETLR will not be renewable and will not allow the holder to acquire ILR and those EU/EEA nationals who have it will need to apply for an immigration status under the new immigration system, which will come into effect from 1 January 2021.

Inevitably Brexit involves the UK self-demoting itself from its present influential EU status in the hope of an alternative superior identity but events have shown that all this is just a mirage, or wishful thinking at best. And the Seaborne Freight debacle – involving the award of a £13.8 million contract to run a freight service in the event of a no-deal Brexit to a company with no ships or trading history – is a clear reminder that the government is nowhere with its no-deal planning. Official figures show that a no-deal Brexit will result in the UK economy shrinking by 9.3 per cent 15 years after the UK leaves the EU. Indeed, the Bank of England (BoE) is very concerned that the “fog of Brexit” is making it impossible to navigate the ship: the UK is simply not ready for the no-deal outcome. If one is to mistrust the BoE governor Mark Carney, as pro-Brexit politicians generally do, then an alternative analysis can be found in the work of the National Audit Office (NAO) headed by Sir Amyas Morse KCB whose report The UK border: preparedness for EU exit leaves no doubt that a hard Brexit without a deal will extensively corrode existing infrastructure and create new logistical complications for the UK.

The NAO has found that no-deal will mean that HMRC will need to process some 260 million customs declarations compared with present volumes of 55 million. Border Force will need to increase staff levels by 8 per cent and the NAO found that 11 out of 12 critical IT systems at the border have been “assessed as being at risk of not delivering on time and to acceptable quality (rated amber or above) by 29 March 2019.” Therefore, without a deal and without the cushioning provided by the transitional period (from 29 March 2019 to 31 December 2020) the UK is heading straight into the abyss. Carolyn Fairbairn, the director-general of the Confederation of British Industry, says that the UK is “in the emergency zone of Brexit now” and economic damage is inevitable.

A softer option is for the UK to remain in a customs union with the EU, as Jeremy Corbyn is now proposing. However, Chris Leslie – the Labour MP who intervened in these legal proceedings – is angry that Corbyn has abdicated his position as leader of the opposition by putting Labour’s conference policy “in the bin” and giving up on the possibility of a second referendum (something supported by all manner of people in the UK). But on the other hand, plans are also afoot that the discredited Brexit deal on offer will pass through Parliament in return for a second referendum offering voters the choice to reconfirm the earlier decision to leave or for the UK to remain in the EU. This ambitious scheme has cross-party support and, to break the deadlock, it is being pursued by remainers such as Peter Kyle, Phil Wilson of Labour and Conservatives Anna Soubry, Sarah Wollaston and Dominic Grieve (there are growing calls for deselection against the latter three MPs for attempting to block Brexit).

Like it or not, this historic CJEU judgment offers the UK an easy alternative to Brexit, an option that will mitigate the incalculable damage that will befall the UK if it leaves the EU without a deal. Overall, one gets the feeling that the CJEU has already had the last laugh on Brexit by suggesting that the UK could rejoin the EU after leaving it on 29 March 2019.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Brexit, Cases, CJEU, European Union, Free Movement, Judicial Review, Scotland, UKSC and tagged , , , , , , . Bookmark the permalink.

2 Responses to An Alternative to Brexit: The Judgment in Wightman

  1. Theresa May responds to Jeremy Corbyn’s demands by outlining her confusion but desire for more talks:

    https://www.standard.co.uk/news/politics/brexit-latest-theresa-may-responds-to-jeremy-corbyns-demands-by-outlining-her-confusion-but-desire-a4062796.html

    In her response to Mr Corbyn’s leader’s letter setting out his conditions to support a Brexit deal, Mrs May said: “It is good to see that we agree that the UK should leave the European Union with a deal and that the urgent task at hand is to find a deal that honours our commitments to the people of Northern Ireland, can command support in Parliament and can be negotiated with the EU – not to seek an election or second referendum.”

    Following on from this, she outlined her main point of contention by stating she was “not clear” about Mr Corbyn’s call for a customs union.

  2. https://commonslibrary.parliament.uk/home-affairs/immigration/eu-citizens-in-the-uk-and-a-no-deal-brexit/

    EU citizens in the UK and a ‘no-deal’ Brexit

    The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 received its Second Reading on 28 January and has passed into Committee stage. On the same day, the Secretary of State for the Home Office, Sajid Javid, announced a new ‘European Temporary Leave to Remain in the UK’ as part of the Government’s no-deal Brexit planning.

    The Government plans to implement the Immigration Bill and end free movement from 30 March 2019 in the event of a no-deal Brexit. This means that for the most part, EU citizens and their family members who come to the UK from 30 March 2019 will require immigration permission to enter the UK. The Government and the Home Office will need rules in place to grant immigration leave to enter and remain to EU citizens.

    However the Government has stated that the new immigration rules, as set out in the White Paper, will “take some time to implement.” This means there will be a gap in immigration law and policy between the end of free movement and the implementation of the new immigration rules for EU citizens. To fill this gap, the Home Office has announced it will implement the new ‘European Temporary Leave to Remain in the UK,’ subject to parliamentary approval.

    The main features of European Temporary Leave to Remain
    EU citizens (including EFTA citizens) will be able to enter the UK as they do now (i.e. without the need for a visa/immigration permission) for a period of up to three months. During this time EU citizens will have the right to work and study in the UK.

    EU citizens who wish to remain in the UK for more than the initial three months will need to apply for ‘European Temporary Leave’. The Home Office has explained that this will be done through an online application where the applicant will need to prove their identity and declare any criminal convictions. This sounds similar to the application process for ‘settled status’.

    European Temporary Leave will allow the holder to remain in the UK for 36 months from the date of their application. EU citizens with this type of leave will have the right to work and study in the UK. It will be temporary and cannot be extended, nor will it lead to settlement in the UK. Holders of this type of leave would be required to apply for further leave to remain under the UK’s new immigration rules when implemented in the future. As the Home Office explains: “there may be some who do not qualify under the new arrangements and who will need to leave the UK when their leave expires.”

    There will be an application fee and family permits will be required for non-EEA ‘close family members’. The Home Office explains in further detail:

    “European Temporary Leave to Remain will allow EEA citizens arriving in the UK after 29 March 2019 to live, work and study in the UK if there’s no Brexit deal.

    “EEA citizens who are granted European Temporary Leave to Remain will be able to stay in the UK for 36 months from the date of their application. European Temporary Leave to Remain will be a temporary, non-extendable immigration status. It will not give indefinite leave to remain (ILR), lead to status under the EU Settlement Scheme or make EEA citizens eligible to stay in the UK indefinitely. If EEA citizens want to stay in the UK for more than 36 months, they will need to apply for an immigration status under the new immigration system, which will come into effect from 1 January 2021. Those who do not qualify will need to leave the UK when their European Temporary Leave to Remain expires.”

    Those who don’t need to apply
    The following people will not be required to apply for European Temporary Leave:

    EU citizens and their family members with settled or pre-settled status.
    Irish citizens.
    Those who are a “serious or persistent criminal or a threat to national security” will not be eligible and the UK’s deportation threshold will apply.

    EU citizens can enter the UK with either their passport or a valid nationality identity card.

    The Home Office explains that employers and landlords conducting right to work and rent checks for EU citizens will not be required “to start distinguishing between EU citizens who were resident before exit and post-exit arrivals.” Until 2021, EU citizens can continue to rely on their passports or national identity cards.

    Settled status and no-deal
    The introduction of European Temporary Leave does not affect those eligible for the settled status scheme. EU citizens living in the UK prior to 29 March 2019 can still apply for settled status in a no-deal Brexit, as European Temporary Leave is a status for those who arrive after 29 March 2019. For more information on this, see the Library’s Insight ‘What does the Withdrawal Agreement say about citizens’ rights?’.

    The settled status scheme has completed its restricted pilot testing phases and is now open for applications from all eligible EU citizens. The Prime Minister Theresa May announced on 21 January 2019 that the £65 fee for settled status will be abolished. People who have already applied and paid the fee will be refunded.

    The Home Office has further stated that EEA citizens who arrive in the UK after 29 March 2019, but who had lived in the UK prior to 29 March 2019, will be eligible to apply for settled status. It is not clear what the specific eligibility requirements will be for people with these circumstances who wish to apply for settled status.

    Further reading

    The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19, House of Commons Library.

    The status of EU citizens in the UK after Brexit, House of Commons Library.

    What does the Withdrawal Agreement say about citizens’ rights? House of Commons Library.

    An employer’s guide to right to work checks, Home Office, 28 January 2019.

    Hannah Wilkins is an Immigration and Asylum Researcher at the House of Commons Library.

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