CJEU judgment on revocability of notice under Article 50 TEU

In Wightman and others v Secretary of State for Exiting the EU, the Court of Justice of the EU (CJEU) has held that notification under Article 50 of the Treaty on European Union is unilaterally revocable.  Read the Court's Press release 10 December 2018 and the Court's Judgment.  See also House of Commons Library 10 December.

On 4 December, the court's Advocate General expressed his non-binding opinion to the same effect - see previous post.

The UK government resisted this action at all stages.  The Prime Minister has also consistently maintained that the Article 50 notification will not be withdrawn.

Withdrawal Agreement ~ Vote deferred and other developments

A)  Committee Report 9 December

The House of Commons Exiting the EU Committee has published a report on the Government’s EU Withdrawal Agreement and Political Declaration.  The Report – agreed unanimously – says that the Prime Minister’s deal fails to offer sufficient clarity or certainty for the future of the UK.

See the Committee's Announcement  and the report - Progress of the UK's negotiations on EU withdrawal - The Withdrawal Agreement and Political Declaration


The Conclusions and Recommendations in the report express doubt that the future relationship agreement can be concluded before the end of 2020. 

"The future relationship negotiations will have to cover a far wider range of issues, including trade in goods and services, foreign policy coordination, policing and information sharing, participation in EU agencies, agriculture, fisheries, data, labour mobility and the recognition of professional

Withdrawal Agreement ~ Attorney-General's Legal Advice published

The government has published the Attorney-General's Legal Advice on the Withdrawal Agreement - see UK Government 5 December 2018.

Following the Motion passed on 4 December in the House of Commons - see previous post - the Government has published the Attorney General’s legal advice to Cabinet on the Protocol on Ireland/Northern Ireland and made this available to Parliament. This is the full, final advice that the Attorney General provided to Cabinet on 14 November on the legal effect of the Withdrawal Agreement. The release of this advice does not set a precedent for any future release of Law Officers’ advice.

House of Commons 4 December ~ a troubled day for the government

Tuesday 4 December 2018

On 4 December the government was held to be in contempt of the House of Commons over the failure to disclose the full withdrawal agreement legal advice given by the Attorney General to the Cabinet - previous post.

The government's timetable motion for the Brexit Withdrawal Agreement debate was approved but with a significant amendment put forward by Mr Dominic Grieve QC MP.  In the evening, the debate on the Withdrawal Agreement and Political Declaration commenced.

Article 50 ~ Advocate-General's Opinion says unilateral revocation of notice is possible

Advocate General Campos Sánchez-Bordona has concluded that notification under Article 50 of the Treaty on European Union (TEU) may be unilaterally withdrawn by the member State which gave the notice.  Please read the court's announcement (pdf) which is available via the CJEU website.

The FULL opinion containing legal reasoning is also available.

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

Attorney General ~ Legal position on the Brexit Withdrawal Agreement

Updated 5 December

The government has published a document setting out the Legal position on the Withdrawal Agreement - 52 pages pdf - and see Parliament Attorney-General Questioned on Withdrawal Agreement Legal Advice.

Hansard has also published the Attorney-General's statement to the House of Commons and the subsequent debate -  Hansard Monday 3 December 2018.  See also Parliament TV - here.

Several MPs expressed

Brexit ~ some notes of interest

Mr Donald Tusk, the President of the European Council,  made a statement at the G20 meeting held in Argentina - see European Council 30 November.     He said, "Many leaders will certainly have questions about Brexit. Therefore, let me say this. The European Union has just agreed an orderly divorce with the United Kingdom. A few days before the vote in the House of Commons, it is becoming more and more clear that this deal is the best possible, in fact, the only possible one. If this deal is rejected in the Commons, we are left with, as was already stressed a few weeks ago by  Prime Minister May an alternative: "no deal; or no Brexit at all."  I want to reassure you that the EU is prepared for every scenario."   Food for thought for MPs in the forthcoming House of Commons debate and vote.   The vote is scheduled for 11 December.

Withdrawal Agreement and Political Declaration ~ Materials

Some of the materials available to assist with the Withdrawal Agreement and Political Declaration.  Lists to be updated if new material is published - see Additions below.

The Withdrawal Agreement and Political Declaration were published on 25 November:

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

Draft Political Declaration and see Government Statement

White Paper - Legislating for the Withdrawal Agreement

The government has published a White Paper on Legislating for the EU Withdrawal Agreement and it is available via the Department for Exiting the EU website - 44 pages pdf.

Chapter 5 of the white paper sets out Procedures for approval and implementation of the withdrawal agreement and framework for the future relationship.

There are two statutory procedures to be followed

CJEU to hear preliminary reference on whether Article 50 may be revoked

Today, the Court of Justice of the European Union (CJEU) will sit en banc to hear argument in a preliminary reference from Scotland's Court of Session.  The Scottish court made the reference in Wightman and others v Secretary of State for Exiting the EU [2018] CSIH 62 - Lord Carloway (Lord President) and Lords Menzies and Drummond Young.  The CJEU Case number is C-621/18.

An attempt to stop the reference was made by the UK government but this was rejected by the UK Supreme Court on 20 November - see HERE  

The reference asks the CJEU to determine whether unilateral revocation of the Article 50 notice is permissible under EU law.

25 November 2018 ~ EU endorses Withdrawal Agreement and Political Declaration

"Ahead of us is the difficult process of ratification as well as further negotiations. But regardless of how it will all end, one thing is certain: we will remain friends until the end of days, and one day longer" - Statement by EU Council President Donald Tusk 25 November 2018.

On 22 January 1972, at the Egmont Palace in Brussels, Prime Minister Edward Heath signed the Treaty of Accession taking the United Kingdom into the European Communities with effect from 1 January 1973.  Denmark and Ireland also acceded to the communities at the same time.  Norway had participated in the accession negotiations but did not join as a result of an adverse national referendum.  Norway also rejected membership in 1994.

At the time,

Brexit - Overview of the draft Political Declaration 22 November

A draft Political Declaration (PD) has been agreed at negotiator level - see Department of Exiting the EU.

The outline declaration published on 14 November 2018 is now just part of the history of the Brexit-story - see this previous post.

The Prime Minister's statement to the House of Commons (22 November) may be read HERE and the ensuing debate HERE.

Status of the Declaration:

Draft Withdrawal Agreement - November 2018 - No.9 - Protocol on Northern Ireland

This post looks at the Protocol for Northern Ireland which is in the draft withdrawal agreement.  The post also completes my overview of the draft agreement.  Links to all previous posts are at the end of this post.

The Protocol is at pages 302 to 475 of the agreement.  It contains 21 Articles and 10 Annexes.

The EU has issued an explainer specific to the Northern Ireland protocol - HERE.  It is in the form of Questions and Answers and is a clear exposition of the situation.  For convenience, I have reproduced it in this post.  The UK government has also issued an Explainer of the draft agreement - HERE - together with a shorter explainer related to Article 6 to 8 in the Protocol.

Draft Withdrawal Agreement - November 2018 - No.8 - Protocol on the Sovereign Base Areas in Cyprus

The United Kingdom operates two "sovereign bases" in Cyprus - Akrotiri and Dhekelia.   Earlier this year, a Parliamentary Select Committee noted - "The situation on Cyprus is further complicated by the existence of two Sovereign Base Areas (SBAs) on the island, remnants of its pre-1960 status as a UK Crown Colony. The Bases are British Overseas Territories administered by the Ministry of Defence, which are not part of the European Union.  Dhekelia — also known as the Eastern Sovereign Base Area or ESBA — straddles the Green Line and contains two crossing points for movements of goods and people between the two parts of Cyprus."

Whilst the bases

Draft Withdrawal Agreement - November 2018 - No.7 - Protocol on Gibraltar

Updated 25 November 2018

Strategic importance:

Gibraltar has always been of strategic importance and that was recently affirmed in a statement by the Armed Forces Minister - Ministry of Defence 19 November. 

The signing of the Armed Forces (Gibraltar) Act marks an important milestone for both the UK and Gibraltar and will ensure the relationship between Service Police on The Rock and the Royal Gibraltar Police to go from strength to strength.  Armed Forces Minister Mark Lancaster said:

Draft Withdrawal Agreement - November 2018 - No.6 - Parts Three (Separation) + Part Five (Financial)

The Prime Minister addressed the Confederation of British Industry  - her speech may be read HERE.  Mrs May said - "We now have an intense week of negotiations ahead of us in the run-up to the special European Council on Sunday.  During that time I expect us to hammer out the full and final details of the framework that will underpin our future relationship and I am confident that we can strike a deal at the council that I can take back to the House of Commons."

The EU General Affairs Council discussed the situation on 19 November - see HERE.  This communique notes - "On Sunday 25 November 2018, EU27 leaders are expected to endorse the Brexit withdrawal agreement and to approve the political declaration on future EU-UK relations." 

Draft Withdrawal Agreement - November 2018 - No.5 - Part 2 (Citizens' Rights) - November 2018

This post considers the draft withdrawal agreement Part Two (Citizens' Rights).  The change in UK-EU relationship from full member to non-member was always bound to be a complex business.  After all, there have been 46 years of deep integration with numerous changes along the way.  In consequence, the provisions in Parts Two of the draft withdrawal agreement are complex and particularly detailed with numerous references to relevant EU legislation.  In this post I have tried to set out the main features.

Draft Withdrawal Agreement - November 2018 - No.4 - CJEU role, Joint Committee, Dispute settlement

This post is an overview of Part Six (Institutional and Final Provisions) of the Draft Withdrawal Agreement.

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

Part Six covers pages 268-300 and is divided into four Titles: I - General Interpretation and Application - Articles 158-163; II - Institutional Provisions - Articles 164-166; III - Dispute Settlement - Articles 167-181; IV - Final Provisions - Articles 182-185.

The Withdrawal Agreement

Draft Withdrawal Agreement - November 2018 - No.3 - Transition

This post is an overview of Part Four (Transition) of the Draft Withdrawal Agreement.

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

Transition is addressed in Article 126 to 132 of the draft - at pages 196-209.

Draft Withdrawal Agreement - November 2018 - No.2 - Preamble and Common Provisions

The Draft Withdrawal Agreement is worthy of analysis even though, at the time of writing, it is far from certain whether it will ever be approved by the UK Parliament.  It is important that the agreement is properly understood even if, ultimately, it is rejected.

On Thursday 15 November it received a hostile reception in the House of Commons, there were Ministerial resignations.  This morning it appears that Conservative MPs are preparing for a vote of confidence in Mrs May as Party Leader despite the point that changing the Prime Minister as the UK leaves the EU would carry serious risks.

On Friday 16 November, the Prime Minister appointed Mr Stephen Barclay MP as Secretary of State for Exiting the EU.  Mr Michael Gove MP rejected an invitation to take on the role - BBC News 16 November.

At a Press Conference