From 5-8 December, the Supreme Court will hear four days of submissions in the case of R (Miller) v Secretary of State for Exiting the European Union, now widely known as the Article 50 case. As has been widely reported, the government is appealing the High Court’s judgment of 3 November 2016 that the government does not have the power to provide notice to the European Council of the UK’s intention to leave the EU under Article 50 of the Treaty on European Union without the prior authority of Parliament.
Following the Government’s appeal, and the permissions granted to several intervenors in the case, there have been suggestions in the media and elsewhere that the case might be heard by the Court of Justice of the European Union in Luxembourg or that the government might “appeal” the case to Europe.
We set out below some of the key questions and answers in relation to the possible involvement of the Court of Justice in the Article 50 case.
Q: How could the Court of Justice become involved in the Article 50 litigation?
There is no appeal from a national court to the Court of Justice. Reference in the media to an “appeal” to the European Court is incorrect and misleading.
The Supreme Court, alongside all courts and tribunals throughout the European Union, has the ability to make a “reference” to the Court of Justice if it has a question on the interpretation or validity of a piece of EU law.
If the Supreme Court has a question on the interpretation of Article 50, it can send the question to the Court of Justice, which will then make a ruling known as a “preliminary ruling” on this particular point of law only. The Court of Justice will then send the ruling back to the Supreme Court, which will then resume proceedings and decide on the overall case.
The Court of Justice will do no more than answer the question of EU law put to it. Contrary to some news reports, it will not make any comment or ruling on points of UK constitutional law.
Q: Is the Supreme Court obliged to make a reference to the Court of Justice?
As the UK’s ‘court of last instance’, the Supreme Court is under an obligation to make a reference to the Court of Justice if it believes that a decision on the question is necessary to enable it to give judgment.
The only exceptions from this obligation are if the point has already been decided upon by the Court of Justice or the issue is deemed to be so clear that no other court could possibly reach a different conclusion on that point (known as the “acte clair” doctrine). Given the new and untested nature of Article 50, it is highly unlikely that the Supreme Court will reach this conclusion.
The key question will therefore be whether the Supreme Court considers that a point of EU law on which there is uncertainty is necessary to allow it to give judgment.
Q: What point of EU law might arise and why?
One of the potentially pivotal issues in the case might be the question of whether a notice to leave the EU under Article 50 can be revoked unilaterally. Article 50 is silent on this point and there is a mixture of opinion amongst legal practitioners and academics.
The question of whether an Article 50 notice can be revoked is relevant to the question of whether or not issuing the notice leads inexorably to the removal of rights granted to individuals through statute (i.e. the European Communities Act 1972). This was one of the key points that led the High Court to rule against the government.
Q: What did the High Court judgment say about the revocability of Article 50?
The High Court did not rule on whether Article 50 is revocable because both parties (i.e. the Government and the claimants) agreed during the High Court proceedings that a notice under Article 50(2) cannot be withdrawn once it is given.
The High Court therefore found that, while the “royal prerogative” powers allow the Government to conduct international relations, including making decisions relating to international treaties, the prerogative cannot be used to take away rights conferred by Parliament. Therefore, the prerogative could not be used to invoke Article 50, on the basis that (if it is irrevocable) it would remove rights conferred by the European Communities Act 1972, the piece of legislation that effectively brought the UK into the EU.
However, if an argument were made that the Article 50 notification is revocable, then the decision to trigger Article 50 would arguably not necessarily lead to the removal of rights conferred by Parliament - only subsequent actions or the subsequent failure to revoke Article 50 would do so.
Q: What does the Government’s appeal say about the revocability of Article 50?
While the Government’s skeleton grounds for appeal note that the issue of revocability is not relevant to the case, Government lawyers have been reportedly exploring the possibility of arguing that the Article 50 notice could be revoked. Politically, it may be difficult for the Government to argue that Article 50 is revocable. The Brexit Secretary, David Davis, previously stated that the Government’s reasons for accepting that Article 50 could not be withdrawn were not so much legal as constitutional and political as it did not “see it as possible that we could reverse the decision of the British people”.
Q: What is the likely impact of the interventions in the appeal?
On 18 November 2016 the Supreme Court announced that it had granted permission for the Scottish and Welsh governments, as well as a group of expatriates, and the “Independent Workers Union of Great Britain”, to intervene in the Article 50 appeal. A group of lawyers and retired judges has been granted permission to file written submissions. The Attorney General for Northern Ireland will also make representations in the appeal following a reference to the Supreme Court regarding devolution issues.
The interventions increase the possibility of the revocability of Article 50 being raised as an issue in the appeal. As noted above, raising the issue of revocability increases the possibility of a reference to the Court of Justice. The Attorney General for Northern Ireland has furthermore specifically raised the possibility of a reference to the Court of Justice in its written submissions.
Q: What will happen if the parties and interveners do not raise revocability arguments?
If the parties and the interveners do not raise the issue of revocability in the appeal, the Supreme Court is arguably still under an obligation to make a reference if it believes the Court of Justice’s ruling on the revocability of Article 50 is necessary to allow it to make a judgment. Given the fact that, in the High Court proceedings, the irrevocability of an Article 50 notice (as agreed between the parties at that stage) was a crucial factor in the judgment, it is hard to see how the Supreme Court can avoid making a reference to the Court of Justice.
Q: What are the timing implications of a referral to the Court of Justice?
The UK’s Prime Minister has stated that Article 50 will be triggered by the end of March 2017. However, a reference to the Court of Justice could have significant implication on the timing of giving the Article 50 notice.
The Court of Justice normally takes about 16 months to give a ruling. However, it is likely that a referral from the Supreme Court would be subject to the expedited procedure which would reduce the amount of time between the reference and the ruling. In previous cases, the periods between the reference from the national court and the ruling by the Court of Justice were six months and approximately four and a half months, respectively. While a shorter timeframe might be possible in this case, a reference to the Court of Justice still takes a number of months, as the parties to the case (including interveners), other EU countries and the EU institutions must all have the opportunity to consider their positions and present submissions before a hearing. If a reference is made to the Court of Justice, the Government may seek to obtain Parliamentary approval to give notice under Article 50 while it awaits the Court of Justice’s preliminary ruling. However, a reference will still make it very difficult for the Government to give notice under Article 50 by the end of March 2017.