European Union (Withdrawal) Bill — House of Lords, 2018-04-30
Topic: International Affairs
Dafydd Wynne Wigley (Plaid Cymru, Centre-left to left): My Lords, the first objective of the proposed new clause is to test whether the Article 50 notice is revocable. If so, its second objective is to suggest that in certain circumstances the Government might avail themselves of that option. Clearly, that could be an issue if we find ourselves with a no deal Brexit or a breakdown in negotiations at the very last moment. We touched on aspects of this in an earlier debate There have been no rulings on the revocability of Article 50. It is widely assumed that the interpretation of the treaty could ultimately be a matter for the Court of Justice of the European Union, although I noted the qualifications outlined earlier by the noble Lord, Lord Kerr, in that context. The parties to the Gina Miller case assumed that notice of withdrawal is irrevocable. However, a preponderance of academic opinion maintains that it is revocable. One attempt to refer to the CJEU for a ruling was dropped—the Dublin case—on the basis of costs, as I understand it. Another—the Edinburgh case—is in the process of being appealed There is considerable opinion that an Article 50 notice could be revoked. Professor Closa has raised a number of formal and substantive objections to the assumption of Article 50’s irrevocability; the most compelling one draws on a comparative assessment of international law and practice under which a withdrawing state is bestowed a cooling-off period, allowing it to change its decision. Furthermore, Donald Tusk, President of the European Council, has asserted in his political capacity that on conclusion of the Article 50 negotiation process, the status quo could be maintained, meaning that if the UK was not happy with the agreed terms of Brexit, it could opt to continue to be a member of the EU The interpretation of Article 50, if one were needed, would be a matter of EU, not UK, law. The EU treaty is silent on the matter of revocability, but under Article 267 of the TFEU, there could be a role for the CJEU in determining whether an Article 50(2) notice can be withdrawn if a member state that has served notice of an intention to withdraw changes its mind. There is a general principle of international law, set out in Article 68 of the Vienna Convention on the Law of Treaties, that a notification of intention to withdraw from a treaty, "may be revoked at any time before it takes effect" This provision does not override any specific arrangements in a treaty, but are questions about the decision to trigger Article 50 under national constitutional arrangements relevant to the CJEU? If a court of last instance has some uncertainty as to the correct interpretation of EU law, it must refer a question on the interpretation of EU law or the EU treaties to the CJEU, but not, I stress, if the national court decides that something is clear "beyond reasonable doubt". This is known as the "acte clair doctrine" and has been established in the case law of the CJEU. The courts have not ruled on revocability. I therefore contend that the amendment is both valid and necessary and I beg to move.