By Oliver Garner
On the day that Theresa May declared that withdrawal negotiations between the United Kingdom and the European Union have reached an impasse, the Inner House of the Court of Session in Scotland issued a judgment that may pave the road for a third option between no deal and May’s imperilled Chequers deal. The Scottish court 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 purpose of the reference is to clarify for Members of Parliament whether it would be a legally valid option under Section 13 of the European Union (Withdrawal) Act to withhold a resolution approving any negotiated withdrawal agreement, or lack thereof, and instead vote to revoke notification under Article 50(2).
This post will summarise the reasoning of the Court of Session judgment. It will then engage with the arguments for and against the proposition that notice under Article 50(2) may indeed be revoked unilaterally. The argument will be forwarded 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. The post will conclude with consideration of the second limb of the conditions and effects of such a revocation for the Member State remaining within the EU. If unilateral revocation is indeed possible, it will be argued that the most desirable method of creating such a statutory power would be to include it within legislation mandating the holding of a second referendum on the question of whether the United Kingdom should leave or remain within the European Union, and to predicate its operation thereupon. Continue reading