Vocal Voices

When a court of Session (Scotland), judge was asked to put a case before the CJEU (Court of Justice of the European Union), on whether the UK could unilaterally withdraw from A50, the judge had the following to say.

Finding in favour of the Government, Lord Doherty said: "I am mindful that demonstrating a real prospect of success is a low hurdle for an applicant to overcome.

"However, I am satisfied that that hurdle has not been surmounted. Indeed, in my opinion, the application's prospect of success falls very far short of being a real prospect.

"In my view, the Government's stated policy is very clear.

"It is that the notification under Article 50(2) will not be withdrawn."

He went on: "Given that neither Parliament nor the Government has any wish to withdraw the notification, the central issue which the petitioners ask the court to decide - whether the UK could unilaterally withdraw the Article 50(2) notification - is hypothetical and academic.

"In those circumstances it is not a matter which this court, or the CJEU, require to adjudicate upon."

The judge concluded: "I am not satisfied that the application has a real prospect of success ... Permission to proceed is refused."

Apparently the group who put this to the court will appeal....

Now when I went back to college and did some legal studies, one thing was clear. If you want the court to decide some legal issue, there needs to be an active dispute in progress (let us say we have asked to rescind A50) and there needs to be some ambiguity.

Well there is no active dispute in place. Our government has not asked to back out.

OK how about ambiguity? Here is A50 in it's entirety.

Article 50
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

Now I don't know about you but that says you're on a 2 year exit path unless EVERYONE decides to extend.

There is nothing ambiguous about that. It is categoric.

I am pleased to say that the judge treated the case with the contempt it deserved.

You will notice that in A50 there is not one word, phrase, sentence or paragraph mentioning anything about the state invoking A50 changing its mind and revoking the same during the two year notification period or before any entry into force of the withdrawal agreement (para 3).

Lord Kerr, the author of A50, and many Internation Law experts believe that it can.

However, that is not the question. The question is whether the ECJ can make a "definitive" ruling on the matter of whether the UK Parliament could unilaterally halt the Brexit process if the final deal is deemed unacceptable by the Commons - in other words dictate UK law and the working of parliament. In that respect Lord Doherty of the Court of Session in Edinburgh is correct.

The only way the other thing can be resolved is via a test case under International Law, should it ever happen. It is highly unlikely that the UK will be that test case.

BTW:
A 213(3) is about the EU forming the negotiating team under A50.
A 238(3)(b) sets out the requirements for a QMV with regard to A50 paras 2 and 3. It is not the case that EVERYONE has to agree.

It is very true that the article says nothing about the State changing it's mind. The treaty was written by politicians and, as such, I would expect them to have a political view to it. It will, however, if challenged, be interpreted by the courts.

The article has two provisions in terms of exiting.

1. You trigger and you are gone in two years
2. You trigger and 2 years is not long enough so Everyone agrees to extend.

I, personally, believe that the courts will identify the wish to withdraw as a permanent extension. In that case the article already has provision for it and it requires a Unanimous vote in the European Council. The entire article is written in a way that the member state triggers the request to leave and then the EU takes over and drives the terms and conditions of that exit. Essentially if things have become so bad that a state actually triggers the leave process, the EU itself does not want that kind of cancer within it's midst's. The article also has provision for a state, having left, wanting to accede to the EU again under article 49.

I know that politicians love to twist things so you have a situation like this. You enter a boxing ring and you are losing. So you retire from the match and it is as if you never entered. Actually, no, you were beaten and you lose whatever title you were defending. There is plenty of precedent in life and in the courts, for that kind of thing. It is just in politicians minds that everything is negotiable if you didn't actually say that you couldn't do it.

We have booked our ticket on the Brexit Express. We have stepped on the train, the doors have closed and we're on the way and the train is not stopping until we get to the other end. If we want to get off somewhere else, then we have to convince the train owners that it is in their interest to do so. Oh and pay the price too.

The judge was quite right.

"I am mindful that demonstrating a real prospect of success is a low hurdle for an applicant to overcome."

The Judge was not just talking about whether the Government was going to try and withdraw. He was talking about the success of the application to decide whether the UK could unilaterally withdraw or not. His response was also quite salient. He called the question academic. It is a legal way of saying "you can argue this to your heart's content but if I were to make a decision on this I would rule on the basis of the agreed treaty article. And find against."

He was quite blunt in his dismissal. He was actually saying don't appeal, you'll lose.

The whole post-referendum shemozzle has been a downer. The fatuous name calling from both sides, the sneering, the attempts to ignore the result, the in-fighting and the seeming lack of urgency - none of this fills you with confidence.

We'll just have to ride the torpedo 'til the end of the journey.

Why people just can't accept the result (as we did in 1975) and just move on I don't know.

cromwell wrote:Why people just can't accept the result (as we did in 1975) and just move on I don't know.

It is because some fear that Brexit will be a disaster, and fear of the unknown is a powerful driving force. I voted remain but I do not share that view, though I can understand why some are concerned.

However, it is not the Remainer in the street causing the problems, we have no power over this, it is politicians out for their own ends who are to blame.

Workingman wrote:However, it is not the Remainer in the street causing the problems, we have no power over this, it is politicians out for their own ends who are to blame.

Well that and a few think tanks, some very large businesses and the CBI, although the CBI is more than a little borderline political.

I continue with my somewhat amused view of what is going on. My greatest amusement, so far, is what is happening in Scotland. Where fully 20% of the people who back a Scotland independent of the UK are for a Scotland independent of Everyone... That and the fact that the poison dwarf is getting her head handed to her over the fact that Brexit is a United Kingdom Competence and the devolved parliaments get no say on it...

Must have a word with Elon and see just how much it would cost to launch the lot of them into orbit.... I wonder if you could crowd fund it???

Suff wrote:Must have a word with Elon and see just how much it would cost to launch the lot of them into orbit.... I wonder if you could crowd fund it???

My debit card is out and on the desk.