Absent from the feast?

One matter was very conspicuous by its absence in the Supreme Court Brexit hearing this week.  The absentee was the question of whether there ought to be a preliminary reference to the Court of Justice of the EU on whether a notice under Article 50 (Treaty on European Union) may be withdrawn unilaterally once given.  The question was not overlooked by the parties in their written cases - see, for example, the written case of Miller at pages 13 and 14 where it is said that the parties were content to proceed on the basis that notice could not be withdrawn. 



One might think that, in practice, it is unwise to enter into any negotiations without a proper understanding of the rules that will apply.  There seems to be little point in getting into negotiations unless the UK negotiators know whether the notice can be lawfully withdrawn.  If it cannot be withdrawn then the UK would be stuck with whatever "deal" emerges or, alternatively, would end up leaving the EU without any agreement.  One might also think that Parliament would wish to know the answer because, in due course, it may well be presented with a fait accompli.

At Bratislava there was an informal meeting of the EU remaining 27 members (R27) without a UK presence (post 18th September).   At an event in Brussels, Mrs May was given 5 minutes to speak after a dinner - Independent 21st October.   It seems that Mrs May said that  Britain expects to be part of EU decision-making until Brexit is completed, rather than be snubbed at any summits and negotiations when key matters are discussed.  The European Council next meets on 15th December and the agenda includes migration; security (including defence matters); economy, social development and youth; external relations including the Russia / Syria situation.  There will be another informal meeting "held in the margins of the December European Council" with the objective of setting out how the Brexit process will be handled by the R27 once the UK has notified.

Legal proceedings are being planned to take place in Ireland.  Please see the Waiting for Godot website where it is reported that:

"Jolyon Maugham QC will launch a bid to crowdfund £70,000 in grassroots donations to cover the costs of an action in the Irish High Court which will aim to establish whether an Article 50 notification sent by the UK would be revocable at a future date.

The Defendants will be the Irish State, the Council and the Commission and the anticipated plaintiffs will be UK MEPs. The claim alleges that Article 50 may, in fact, already have been triggered. If it has been triggered then the Commission is in breach of its Treaty duties through wrongly refusing to commence negotiations with the UK. But if it has not, the Council and Irish State are in breach of their Treaty duties in wrongly excluding the United Kingdom from Council meetings."

This will be an interesting development and further details are awaited.  It is hard to accept the view that Article 50 may already have been triggered.  That is plainly not the understanding of either the House of Commons (see Opposition Day debate) or the European Council which has referred to how the Brexit process will be handled once the UK has notified.  The notification would in due course be done via diplomatic channels and there cannot be the slightest doubt that the British government will make it plain that the Article 50 process has commenced.

Considerable attention needs to be given to the forthcoming European Council meeting to see just what role the UK plays.  As for the "informal" in "the margins" meetings, the UK government appears to be content to accept that they will happen.

Update:

European Council December meeting and UK Parliament - Statement by Prime Minister