Reversibility of Brexit talks downplayed in UK Supreme Court litigation

Published on the MLex Brexit Service 23 November 2016. By Lewis Crofts and Matthew Holehouse.

The UK government has stuck firmly to the line that once Brexit talks start, they can’t be stopped. But as lawyers prepare to fight the government’s corner next month at the UK Supreme Court, they have started to soften the position, saying the reversibility of a Brexit notification is irrelevant. That may be an attempt to keep the question away from EU judges in Luxembourg. But it could also grant the UK greater room for maneuver when the Brexit waters get choppy.

Triggering EU exit talks is an irreversible act that leads inevitably to Brexit in two years’ time. That is common ground between the UK government and a group of litigators seeking Parliament’s approval before starting talks.

But the government has couched its position, ahead of a UK Supreme Court case starting on Dec. 5.

The litigation rests heavily on the assumption that once talks have started — by triggering Article 50 of the EU Lisbon Treaty — then they can’t be stopped.

This means that rights given to citizens under EU law will inevitably be lost. That consequence was enough to persuade judges at the lower High Court to rule in November that parliamentary approval was needed to get negotiations going.

In the lower court, the claimants, led by hedge-fund manager Gina Miller, insist on the Article 50 notification being irrevocable. They likened the move to the firing of a gun. Only that way could they argue that their rights would unavoidably be lost.

The government had to toe the same line, because it couldn’t be seen to contradict the outcome of the June Brexit referendum vote.

Despite press murmurs that the government would renege on its position, it hasn’t in its pleadings to the Supreme Court. Although it has couched its views on the reversibility of Article 50 more carefully.

The reversibility of the notification is “in any event of no practical significance to this appeal,” the government’s lawyers wrote in submissions to the court.

Their case rests on whether the government can use “prerogative” powers to start talks. The ability to use those powers shouldn’t depend on whether the first step in the Brexit process can be revoked, it said.

If the government succeeds in isolating the notification of Article 50 from its consequences, it could more easily argue the launch of talks is a matter of international law and therefore needs no parliamentary approval.

Litigation

The government might be wary of Supreme Court judges dwelling over the reversibility of a clause contained in an EU Treaty.

This could throw up a question of EU law — over the wording of Article 50 — and open the door to the case being passed on to judges in Luxembourg, who give the final word on the interpretation of treaties.

While this approach remains highly unlikely, the government’s more nuanced wording might seek to persuade judges that there’s no point in visiting the topic, let alone putting the question to EU judges.

A reference to the Luxembourg court could delay Brexit by several months, if not years. And the EU Court of Justice could ultimately rule that Article 50 was revocable and open up the possibility of a second referendum.

Both outcomes would be politically toxic for the government. But it presents an awkward scenario: the government might prefer to lose this appeal, rather than win it on a ruling that says that Article 50 is revocable.

Room for maneuver

The government’s careful wording might also give it some political cover when Brexit talks start in earnest next spring.

The government’s insistence it won’t row back isn’t solely for domestic consumption. It wants to make clear to its negotiating partners in the EU that it has no intention of calling off the talks when tough terms are presented.

But the election of Donald Trump in the US, and the heightened prospect of a Front National victory in France’s presidential elections, means the political landscape in Europe looks less stable than it did when the High Court ruled a month ago.

The less that UK Supreme Court judges say about Article 50’s reversibility, the easier it will be for the UK government to suspend talks if events in Europe require it.

	Eliot Gao