Wednesday, December 12, 2018

CJEU on Article 50

On the day the European Court of Justice Advocate General, Campos Sanchez-Bordona, issued his opinion in Case C-621/18, Wightman & ors v Secretary of State for Exiting the EU, stating the UK government could unilaterally revoke the Article 50 TEU notification, I wrote to my MP, Layla Moran, at the behest of Jolyon Maugham QC's Good Law Project.
Dear Layla Moran MP, 
I wanted to tell you about an important development. This morning the Advocate General of the Court of Justice of the European Union, Campos Sanchez-Bordona, ruled that the United Kingdom can decide to remain in the EU. And that we don’t need the consent of the other member states. That puts the decision about our future back into the hands of MPs – where it belongs. You can find the opinion at [sic this link is timed out] 
I realise that you understand that Parliament in 2015 opted for an advisory referendum in the European Union Referendum Act. The form in which that Act was adopted requires MPs to reflect on what we now know about unlawful conduct during the referendum and whether it has been possible to strike a deal which meets the promises made by Leavers to the British people.  
I appreciate your efforts in opposing the government's shambolic management of the Brexit process.

For my own part, I want you to know that the proven illegality of the Leave campaign and the fact the deal falls so far short on what was promised leaves us without a proper mandate for Brexit.  
Thank you for taking the time to read this email.  
Yours sincerely,  
 Ray Corrigan
 Ms Moran responded positively.
"Dear Ray, Corrigan
Thank you for taking the time to e-mail me following the recent course case in which is was decided that Parliament can cancel the Article 50 Notice, effectively meaning a 'no deal' scenario is ruled out. I very much welcome this development.
I believe that Theresa May's deal would be disastrous and that Parliament should reject it. We have a deal that is a world away from what was promised in the Leave campaign, that would leave the UK worse off and with no influence in Europe, and which literally no-one wants. I will not be supporting it.
I am completely behind the campaign for the people, not politicians, to be given the final say on this deal. It is vital that we have a People's Vote - a referendum on the final deal giving the country a choice between Theresa May's botched Brexit deal and the current deal we have at the moment in the EU. 
This is something that the Liberal Democrats have campaigned on for months. I was part of the cross-party People's Vote campaign earlier in the year. I tried to amend the EU Withdrawal Bill to provide for a referendum on the deal, and I have consistently argued for one in Parliament.
It remains my top priority as your MP to secure a People's Vote. It was so uplifting to be one of the hundreds of thousands of people marching through London recently to demand that the country has a say on the final Brexit deal, with the option to remain in the EU. I am determined to keep working both inside and outside Parliament and across party lines to secure a fair referendum on the deal, with the option to remain in the EU.
I spoke on behalf of the Liberal Democrats at the recent cross-party rally calling for a People's Vote - you can see my speech on YouTube here:
Thanks for your support for the campaign and for taking the time to contact me. Please rest assured that I will keep up the fight on your behalf until we secure a People's Vote. I hope that's helpful, but if you'd like to discuss things further or if there's anything else that I can assist with please don't hesitate to get in touch.
With best wishes, Layla  Layla Moran MP"
The Full Court, on Monday 10 December, ruled that
"Article 50 TEU must be interpreted as meaning that, where a Member State has notified the European Council, in accordance with that article, of its intention to withdraw from the European Union, that article allows that Member State — for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired — to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements. The purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end."
The UK government had spent hundreds of thousands of pounds paying lawyers to oppose this ruling and repeatedly tried to have it thrown out of court at every stage of the proceedings.

A UK government that has specialised in endlessly parroting the phrase 'taking back control', shelled out substantial amounts of public funds, trying to stop anyone finding out if they have control over Article 50.

The Court of Justice of the European Union, one of the most pilloried and hated institutions of the Westminster elite and UK media, a court from which the government claims they are trying to 'take back control', has declared, as a matter of EU law, that the UK government has unilateral control, as a sovereign state in the EU, of the revocation of Article 50.

The government is outraged and has declared they will appeal to the Scottish court, the one that asked the CJEU to let it know if the UK government has control over Article 50, to declare the CJEU is wrong. The interference of the Court in declaring that EU law gives the UK government complete control over Article 50 is disgraceful and unacceptable.  Meddlesome CJEU sticking its nose in where it's not wanted

On the day of the CJEU judgment, having insisted a vote would happen on Tuesday 11 December come hell or high water, the UK prime minister, in full Maybotics mode, transfixed Parliament by postponing the vote on her Brexit withdrawal agreement, potentially indefinitely and nobody in parliament seemed to be able to or prepared to do anything about it.

When the Speaker of the House declared there were two ways to avoid the vote - an honourable procedure and a dishonourable procedure and suggested the government take the former route, he was ignored by practically everyone on all sides. Theresa May was only seemingly embarrassed when directly asked by staunch Brexiteer, Peter Bone MP, whether she'd use the honourable procedure or dishonourable procedure to avoid the vote. Mrs May mumbled disconnected soundbites whilst staring at her feet. No aspect of that abuse of process was reported in any of the media reports I've come across to date. Her plan now was to go back to EU leaders and get "assurances" on what she declared to be the sole sticking point preventing an avalanche of support in her favour - the Irish border backstop, or more specifically article 20 in the Protocol on Ireland/Northern Ireland.
If at any time after the end of the transition period the Union or the United Kingdom considers that this Protocol is, in whole or in part, no longer necessary to achieve the objectives set out in Article 1(3) and should cease to apply, in whole or in part, it may notify the other party, setting out its reasons. Within 6 months of such a notification, the Joint Committee shall meet at ministerial level to consider the notification, having regard to all of the objectives specified in Article 1. The Joint Committee may seek an opinion from institutions created by the 1998 Agreement.
If, following the consideration referred to above, and acting in full respect of Article 5 of the Withdrawal Agreement, the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives, the Protocol shall cease to apply, in whole or in part. In such a case the Joint Committee shall address recommendations to the Union and to the United Kingdom on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement.
Article 1(3) of the Protocol on Ireland/Northern Ireland referred to says:
"This Protocol sets out arrangements necessary to address the unique circumstances on the island of Ireland, maintain the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions"
The main opposition Labour party, having planned to propose a vote of no confidence in the prime minister, decided against it.

Yesterday the prime minster took a quick trip round various corners of Europe to get some words of assurance from fellow EU leaders. Irish and German governments, the President of the European Commission Jean-Claude Junker and others said there would be no renegotiation of the withdrawal agreement or the Irish border backstop. Mrs May reported back today that she is making progress.

Meanwhile the plotters in her own party back home finally gathered enough signatures to trigger a vote on her leadership which will take place this evening. The plotters, however, are infuriated that now they have inveigled enough Tory MPs to ask for the vote that they are not being given until Monday to rouse further opposition to the PM. The PM for her part continues to chant all her old worn platitudes and soundbites at every available opportunity, whilst politicians who oppose her do likewise, in a dialogue of the deaf.

The ruling party of government has gone insane (or as Guy Verhofstadt, Brexit coordinator for the EU Parliament, puts it Brexit is an emergent property of a "catfight in the Conservative party that got out of hand"), the main opposition is inept and we move inexorably towards a destructive Brexit.

Prediction - May will survive the leadership vote and she'll be immune from another leadership challenge for a year. It does seem unlikely, however, that she will get her withdrawal agreement through parliament, if she ever deigns to chance a vote on it.