British Prime Minister Theresa May arrives for a meeting with European Council President Donald Tusk on November 24, 2018. (AP Photo/Alastair Grant)
British Prime Minister Theresa May arrives for a meeting with European Council President Donald Tusk on November 24, 2018. (AP Photo/Alastair Grant)

Talk about living in interesting times. Just last week, in a vote of 311 to 293, the British government was — for the first time — found by parliamentarians to be in contempt of Parliament, forcing British Prime Minister Theresa May to release legal advice revealing the intractable difficulties of the Brexit deal.

An epic parliamentary debate about the Brexit deal followed. After a last-minute conference call with Cabinet ministers, May abruptly halted the discussion and postponed the final Brexit vote until the new year; it was clear that she would have insufficient votes to get the deal approved.

While European Council President Donald Tusk and European Commission President Jean-Claude Juncker have warned that further negotiations will not be held, May has embarked on a desperate round of European visits to find reassurance for concerned members of Parliament (MPs).

With timely aplomb, on the very day that May postponed the vote on the Brexit deal, a decision of the European Court of Justice (ECJ) was released, providing a much-needed alternative strategy for the prime minister.

Launched in the Scottish Court of Session in December 2017 by named members of the Scottish, United Kingdom, and European Parliaments against the secretary of state for exiting the European Union, the proceedings succeeded in getting a preliminary question referred to the Court in Luxembourg, despite resistance from the UK government, which tried to argue the case was entirely hypothetical. 

For the purposes of deciding the earlier Brexit case of R. v. Miller — which considered the extent of the role of the UK Parliament in approving withdrawal from the European Union — the UK High Court took as “common ground” between the parties, but did not decide, that article 50 notice was not revocable. This allowed the Court to focus its ruling on the likely consequences of giving notice which would be the substantial rewriting of UK law. As a consequence, the UK High Court concluded that Parliament had a central role in authorizing withdrawal and approving the terms of withdrawal after negotiators had reached a tentative agreement. It was as a result of this decision that Parliamentarians have been debating and planning to vote on the Brexit deal.

The full court of the ECJ — with timing reminiscent of the deus ex machina in Greek tragedy — provided an answer to the question that the UK High Court had glossed over in the Miller case. The preliminary question referred to the ECJ was whether it is legally possible for a member state to revoke unilaterally the notification made under article 50(2) of the Treaty on European Union and to remain in the European Union.

The Irish Border and Brexit

The ECJ reviewed article 50 in the context of the whole treaty, its negotiating history and the international law of treaty interpretation. The ECJ concluded that the article should be interpreted as allowing a member state that had given the European Council notice of its intent to withdraw from the European Union to revoke that notice unilaterally, as long as there was no withdrawal agreement already in force and the two-year period of the notice, and any extension thereof, had not expired. This revocation would bring the withdrawal procedure to an end.

Prime Minister May’s attempted assurances about the Brexit deal were fiercely mocked by MPs in the House of Commons, and her decision to postpone the parliamentary vote has been roundly condemned; some MPs are pressing for a vote of no confidence. The pound has sunk to its lowest level in 18 months. 

As May pursues her likely fruitless tour of European capitals and prepares for the postponed vote on the Brexit deal, she would be well-advised to reflect on Canada’s experience of near-separation.

In a far-ranging advisory opinion on the question of unilateral secession by the province of Quebec, the Supreme Court of Canada noted that the legitimacy of constitutional democracy was founded on “adherence to the rule of law, respect for democratic institutions, the accommodation of minorities, insistence that governments adhere to constitutional conduct and a desire for continuity and stability.”  This means that parties must negotiate in good faith the terms of separation after a clear majority vote on a clear question in a referendum. However, a referendum and the ensuing negotiations do not guarantee that an agreement will be reached between the parties.  

Applying this to the Brexit scenario, there have certainly been good faith negotiations between the United Kingdom and the European Union. There were too many stakeholders to allow much bad behaviour in the negotiations, despite political posturing for local consumption. The result is a deal that true Brexiters abhor, as they see themselves forever tied to the European Union through the Northern Ireland backstop. It is a deal that any Remainers detest, because it leaves everyone much worse off than they would be if they simply stayed in the Union. May has unsuccessfully tried to sell her unpopular deal by painting it as the only alternative to a no-deal Brexit, wherein the United Kingdom simply crashes out of the European Union and there is general pandemonium, including lack of food, drugs, medical supplies and nuclear fuel.

Until now the prime minister has refused to take seriously the possibility of backtracking on Brexit but arguably it’s time for her to consider the new option presented by the ECJ. She could offer parliamentarians a couple of choices. If they reject the Brexit deal, parliamentarians could either:

  • vote to crash out of the European Union, or
  • vote to remain in the European Union and revoke the article 50 withdrawal notice.

The second choice would be a reasonable conclusion to a difficult and fraught process. The UK government and the European Union have already attempted to negotiate a solution consistent with the referendum. It proved impossible to achieve a deal that was better than remaining in the European Union. Therefore, the May government has done everything it could to advance the objectives of the referendum, and it can do nothing more at this time. Such an approach shows respect for the rule of law, democratic institutions, accommodation of minorities, adherence to constitutional conduct and desire for continuity and stability.

This approach would not preclude further reflection on how the United Kingdom might separate from the European Union, but it recognizes that negotiations under the time pressures of article 50 with the unrealistic expectations of Brexiters could not lead to a satisfactory result for anyone. The UK government treated the ECJ case as an unwanted intruder, but it may yet rescue the United Kingdom from its existential crisis.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.
  • As director of international law at CIGI, Oonagh Fitzgerald established and oversees CIGI’s international law research agenda, which includes policy-relevant research on issues of international economic law, environmental law, intellectual property law and innovation, and Indigenous law.