Referring Brexit to the Court of Justice of the European Union: Why Revoking an Article 50 Notice Should be Left to the United Kingdom

An Encore to (R)Miller from the Court of Justice?
There is a potential European encore to the constitutional drama of the UK High Court decision in R(Miller) v Secretary of State for Exiting the European Union. The judgment found that the UK government cannot trigger Article 50 TEU without Parliament’s involvement. The government has already indicated its intention to appeal directly to the UK Supreme Court (UKSC). Certain commentators in the media have picked up on the possibility that the Supreme Court could refer (certain aspects of) the case to the Court of Justice of the European Union (CJEU). This has been referred to as ‘the constitutional equivalent of breaking the space-time continuum’.

Of course, as the reaction to the judgment in (R)Miller has shown, the UK media are not afraid of exaggeration. The first and most important thing to reiterate is that the CJEU could not act as the final constitutional arbiter of the question in the case of whether the UK government may use the royal prerogative to give notice under Article 50 TEU. The EU law clause is clear that the condition for the decision to withdraw is ‘accordance with [the] constitutional requirements’ of the Member State. Therefore, the final decision on the substance of whether these requirements have been fulfilled will always be for that Member State’s highest judicial authority. Instead, the possibility of a referral to the Court of Justice in the case concerns one specific aspect of the withdrawal clause: whether the notification to the European Council of an intention to withdraw under Article 50(2) is revocable. The silence of the clause can be seen to constitute a ‘gap’ in the law.

However, this post will argue that it is not necessary for the Court of Justice to prove an authoritative determination on this question of EU law in order for the UK Supreme Court to decide the specific question of UK constitutional law in the (R)Miller adjudication. Therefore – in the specific case of (R)Miller  – the UK court is under no obligation under Article 267 TFEU to refer the question to the Court of Justice of the European Union. The post will go on to consider the hypothetical situations in which there may be such an obligation to refer, and will suggest how the Court of Justice should determine the question in such a scenario …

This is an extract of a blog written by Oliver Garner on the European Law Blog.

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