It is interesting to link Monday’s defeat of the May government before the European Court of Justice ( December 10) with the same government’s equally damaging double defeat in late 2016/early 2017 before the domestic high and supreme courts on the claim that no act of parliament was needed to dispatch an Article 50 notification of intent to withdraw from the EU.
Critical to the earlier defeats was the government’s contention that dispatch of such a notification would have the inevitable and inexorable effect of causing the UK to leave the EU. The other side (Gina Miller et al) pounced on this submission and the courts were “content” to leave it at that. To render a judgment on the means by which notification might lawfully be made, they accepted the parties’ common ground that revocation wasn’t possible.
But what would have happened if the government had not said dispatch was irrevocable? It rather seems that Ms Miller and her fellow litigants would have lost. If notification was revocable, the effect of the dispatch would be uncertain and the interest of the litigants would have been hypothetical.
The point is more than legal. If the government had not denied revocability, it could have escaped major legal defeats. It may be put down to the hubris of the pre-June 2017 May government when, in an attempt to convince Brexiters she was “one of them”, the prime minister adopted a series of rigid, poorly thought out positions. One of these was the “red lines”. Denying act of parliament sanction of the Article 50 notification was a second. Denying the possibility of revocation was a third.
Further, there is hypocrisy in the government’s position on Monday’s ECJ judgment, when it had argued that the court should decline to hear the case on the revocability of a notification of intent to withdraw on the grounds that revocation was hypothetical. The ECJ, as did the advocate general, had no truck with that either.
Hypothetical? Look at the House of Commons today and the numbers of MPs open to the possibility of a second referendum. That will only be possible if there is a delaying mechanism within which there is an option of revocation. Both these options the ECJ explicitly held were lawful in Monday’s judgment.
Amsterdam, The Netherlands
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