The Supreme Court Should Not Refer to the EU Court of Justice on Article 50

Originally published on the U.K. Const. L. Blog, November 11, 2016

One of the most discussed aspects of the forthcoming appeal in the Article 50 litigation is the issue whether the Supreme Court should make a reference to the Court of Justice of the European Union. George Peretz QC and professor Mike Wienbracke argued that it should not (or at least will not), whereas Richard Lang and professor Daniel Sarmiento argued that it should. There are, however, two arguments for why the Supreme Court should not make the reference that have not yet received adequate attention. First, establishing whether an Article 50 notification is revocable is not necessary for the Supreme Court to decide the case because the claimants ought to lose even if it is irrevocable (and not merely because both parties stipulated irrevocability). Second, even if the first argument is wrong and the case does turn on revocability, it is still the case that no UK court has a legal power to make a reference to the EU Court, because the European Communities Act 1972 does not incorporate EU law that purports to regulate withdrawal from the EU.

Before I turn to those arguments, I would like to direct reader’s attention to an interesting statement made in Parliament on 7 November by the Secretary of State for Exiting the EU. In response to a question why his lawyers stipulated that an Article 50 notification would be irrevocable, Mr Davis said: ‘The reason was not really a point of law so much as a point of constitutional and political reality. I did not see it as possible that we could reverse the decision of the British people.’ This answer may suggest that learned legal discussions on the true meaning of Article 50 will not influence the government’s strategy on appeal.

Revocability of an Article 50 notification not central to the case

Under EU law (Article 267 TFEU), a domestic final court of appeal is under a duty to make a reference to the Court of Justice only if a decision on an issue of the interpretation of the EU Treaties is necessary for the domestic court to give judgment. The commentators have already identified several reasons why interpretation of Article 50 TEU is not necessary for the Supreme Court to give a judgment:

  • Both parties to the present litigation have stipulated that an Article 50 notification of a decision to withdraw from the EU is not revocable (though it is clear that both High Court and the Supreme Court could disregard that).

  • Even if the notification is irrevocable, there is still a possibility that withdrawal negotiations will end in something other than withdrawal (e.g. that instead of losing UK as a member, all the member states will unanimously agree on a new EU reform treaty). (Peretz raises this point).

  • Aside from the issue of revocability, by the reference to a Member State’s ‘own constitutional requirements’, Article 50 TEU makes other considerations, of how the decision to withdraw and to notify that intention is to be made, either not issues of EU law at all or issues on which EU law somehow incorporates domestic constitutional law (with a consequence of non-justiciability on the EU level). (Wienbracke develops this argument.)

I suggest to take more seriously the government’s position expressed by the Attorney General on 17 October: ‘[w]e do not in any event accept that this question is central to the arguments before the court’ (page 64 of the transcript). He accepted that if the claimants are right about the limits of prerogative, then the government must lose even if Article 50 allows for revocation of a notification to withdraw. My point is simply that the claimants must lose even if notification is irrevocable. For reasons why this is the case, I refer the reader to powerful analyses by John Finnis and David Feldman. If they are right about the limits of prerogative powers, then even under EU law there is no duty for the Supreme Court to refer.

No UK court has a legal power to make references to the EU Court related to Brexit

What if the Supreme Court concludes that the case does turn on the issue of revocability of an Article 50 notification and if the judges do not see themselves bound by stipulations made by the parties? It would be difficult to argue that, as a matter of EU law, revocability of Article 50 notifications belongs to the set of issues on which EU law defers to national law. It would then seem that, pursuant to Article 267 TFEU, the Supreme Court would be under a duty to make a reference to the Court of Justice. However, this is too quick.

The UK has a dualist approach to all international law and EU law, at least in principle, is not different (on the idiosyncrasies of the case of effect of EU law in the UK, see my forthcoming LQR article). What this means is that, in itself, the Article 267 duty to make references to the Court of Justice is not a duty UK courts can recognize. There is a need for a gateway in UK law to give that EU law any domestic effect. The general gateway for effects of EU law in UK law is to be found in the European Communities Act 1972. However, as I show in my paper, the ECA clearly does not provide for domestic effect of all EU law.

The question then is whether the ECA provides for domestic effect of a duty to make references on matters of withdrawal from the European Union? The Court of Appeal in the Brexit referendum case of Shindler (see my note published in this blog) suggested that the legislative choice made by Parliament in enacting the ECA 1972 was only to make provision for effect of EU law to the extent the UK remains a member of the club. As Elias LJ noted in his concurring majority judgment: ‘… I do not think it can have been intended to bind the UK to those rules when the very question is whether it should be bound by those rules.’ I leave aside the issue that the interpretation of the ECA 1972 in Shindler is much more plausible than (and hard to square with) the one adopted by the High Court in Miller.

What follows from this is that it is at the very least arguable that Parliament did not intend for EU rules, like the duty to make references to the EU Court, to have any effect in UK law in matters of withdrawal from the EU. This would mean that, in UK law, the Supreme Court would have neither duty, nor even a power to make the reference. The reference would not be an option. It would be for the Supreme Court to interpret Article 50 TEU alone and with final authority, just like domestic courts routinely interpret international law.