Preliminary reference on Article 50 TEU’s revocability comes before the European Court of Justice
How do you know things are really serious in the EU Court of Justice? When the entire bench gathers to hear the arguments put before it.
The Wightman Article 50 question comes before the CJEU
The EU Court of Justice (also referred to as the ECJ or CJEU) is comprised of one judge from each EU Member State and is the highest court in the European Union. It’s normal for a smaller group of judges to hear cases, but on this occasion the full bench gathered to hear arguments that Article 50 TEU can be revoked once a Member State has triggered it. Sitting with the Court is the Advocate General, who produces a legal opinion on matters heard by it.
For more on how the Court works and what the role of Advocate General is, watch the video below:
On Tuesday (27/11/18) the Wightman case came before the Court. The case involved a petition to the Scottish Court of Session requesting clarification on whether or not notice to withdraw from the European Union under Article 50 TEU could be revoked in the national interest. Read more about the petitioners’ written arguments to the CJEU here in Legal Tea with B (09/11/18). By way of a Preliminary Reference under Article 267 TFEU, the Inner House of the Court of Session asked the CJEU to clarify whether revocation was possible under the Treaty. Once the CJEU has made a determination, the Court of Session will then be able to make an informed decision on the Wightman petition.
Arguments put forward
The Good Law Project uploaded helpful and detailed notes on the arguments put forward by both the Government and the respondents in Wightman. The Government’s own written summary of their arguments is available here.
Government’s Position – Withdrawal is imminent, the question isn’t relevant
In their earlier application to appeal to the Supreme Court over the Court of Session’s preliminary reference (covered here in Legal Tea with B (26/11/18)), the Government made submissions on why it was not appropriate for the First Division of the Inner House of the Court of Session to refer the question of revocability to the CJEU.
The Supreme Court ultimately rejected the application to appeal. However, the Good Law Project highlighted a submission made in the application where they say the Government appeared to acknowledge that they could be directed to revoke notice given under Article 50 if directed to do so by Parliament.
Did Government accept it could be directed to revoke the Article 50 Notice by Parliament?
The Government argued at paragraph 37 of their application that the Inner House failed to acknowledge the absence of ‘any live proposal to revoke the [Article 50] Notice; and thus the absence of any domestic necessity to answer the question posed’. Effectively, the Government was arguing that there had been no active proposal to revoke the notice and therefore it was not in the domestic interest to deal with the question of whether or not Article 50 could be revoked.
When then would the question of Article 50’s revocability become live and therefore create a ‘domestic necessity’ for the question to be answered? According to the Government this could happen in three different scenarios, the first being that Government was directed to unilaterally revoke the Article 50 Notice by Parliament:
The submissions went on to detail why it was not correct for the Inner House to rely on the European Union (Withdrawal) Act 2018 to strengthen their view that a preliminary reference was necessary. In sum, Government argued that in the 2018 Act Parliament gave authority for the United Kingdom’s withdrawal from the European Union and made no provision for revocation of that authority. The Act only recognises two scenarios: (a) Parliament rejects the deal; or (b) no deal is reached:
Government resists the petition before the CJEU
In the summary of their submissions to the CJEU, arguing that ultimately the Court would be answering a question that was ‘truly hypothetical’, Government appears to maintain their position that the question of revocability of Article 50 is not a live issue and as it is not the intention of Government or Parliament:
First, the United Kingdom Government does not intend to revoke the Notice it has given (following the passing of the European Union (Notification of Withdrawal) Act 2017 by Parliament) and such revocation is simply not in any sense meaningfully in prospect.
This would make the question one that the CJEU should refuse to answer. The Government argued that ‘the CJEU has long refused to provide advisory opinions on questions of EU law’ save for circumstances where an EU Member State or institution seeks to request an opinion on ‘the legality of a proposed international agreement’. To do so would mean the CJEU was ‘becoming inadvisably involved in political debate’.
Wightman and others (assisted by the Good Law Project) – Revocation must be an option
In their submissions to the court, the Petitioners argued at paragraph 3 that revocation of Article 50 must be possible, as a fundamental matter of EU law:
The Petitioner’s went on to reject the Government’s argument that revocation is not a live issue and therefore the question of whether or not Article 50 can be revoked is merely hypothetical. Underpinning their argument is their submission that they cannot fulfil their democratic function as elected members of their respective Parliaments and vote on any withdraw deal unless they know all of the options created by triggering the Article 50 Notice:
Further, the Petitioners argue that properly interpreted, EU law allows for an Article 50 Notice to be revoked:
Additionally, they submit at paragraph 13 that Withdrawal from the European Union, like Membership, should be a voluntary action and therefore the option for a Member State to change their mind over Notice to withdraw from the Union should be open to them before the EU Treaties no longer have legal effect. They go on to present six further reasons why revocation of the Article 50 notice must be possible.
Summarised, they are:
- Notification is not a definitive statement of withdrawal and revocation is possible prior to the conclusion of negotiations (paragraph 16);
- The decision to revoke would follow a ‘genuine change of heart in the Member State on the wisdom of withdrawal’ (paragraph 17);
- Interpreting Article 50 as enabling a Member State to withdraw its Notice would better protect the ‘acquired EU law rights of every citizen of the EU (paragraph 19);
- Article 50 was never intended to expel a Member State against its will (paragraph 21);
- Requiring a withdrawn Member State who changes their mind to re-join the European Union afresh would create a ‘disproportionate and unnecessary interference in the acquired and fundamental rights protected under the EU legal order’ (paragraph 22);
- Their position is supported by the Vienna Convention on the Law of Treaties (VCLT) which expresses recognition of a State’s ability to change their mind upon withdrawal from a treaty, before said withdrawal takes effect (paragraph 24).
The CJEU’s decision
The CJEU’s judgment will follow publication of the Advocate General’s opinion on the legal matter, due to be announced on Tuesday 4th December. The AG’s opinions are provided to assist the Court and whilst they aren’t authoritative law, can be extremely illustrative.
On the very same day the AG releases his opinion, the Brexit ‘deal’ (as agreed by the EU27) is set to be debated within Parliament over the course of five days.
Tension, drama, televised political catfights – who said constitutional law was boring?
Facebook failed to disclose knowledge of Russian hacking of user data in 2014
Following the launch of the ‘Fake News’ inquiry by the House of Commons Digital, Culture, Media and Sport (DCMS) Committee last summer, the Committee made the interim conclusion that ‘‘Our democracy is at risk, and now is the time to act, to protect our shared values and the integrity of our democratic institutions’ (Disinformation and ‘fake news’, 24 July 2018, p 3).’ (See Legal Tea with B (31/10/18) for discussion of urgent calls for electoral reform in light of this conclusion).
Reporting in the Guardian, Emma Graham-Harrison and Jim Waterson describe the shocking news that emerged out of questioning of a Facebook Representative by members of the DCMS Committee on Tuesday 27th November 2018 as they gathered evidence for their inquiry.
The Committee sat alongside members of other Parliaments including Argentina, Belgium, Brazil, Canada, France, Ireland, Latvia and Singapore to gather evidence from Facebook on data breaches within the company. The recent Cambridge Analytica Scandal revealed how user data obtained through Facebook apps was used to target individuals in an attempt to influence elections. It is suspected that individuals within the United Kingdom were also targeted.
The DMCS committee has previously voiced its concerns that Facebook had been deliberately misleading them during evidence sessions. By a letter dated 16th November the Committee requested Mark Zuckerberg, CEO of Facebook, attend the ‘International grand committee’ hearing to give evidence. The letter even offered Zuckerberg the option of giving evidence by video link.
Zuckerberg failed to attend and an empty chair was left for him. Amongst those present to give evidence was Richard Allan, Facebook’s representative. Allan was questioned on the notification by a Facebook engineer in October 2014 that Facebook’s user data had been compromised by ‘entities with Russian IP Addresses’ (The Guardian, Tuesday 27th November 2018).
The DCMS Committee had received information relating to the specific events in 2014 from the seizure of documents from the founder of the US software company Six4Three. In order to compel the release of the documents, the committee is understood to have exercised Parliamentary powers. The documents in question were released to Six4Three as part of legal discovery in an action it brought against Facebook in California.
Facebook has spoken against the seizure of the documents. The Guardian reported that Facebook made the following statement days prior to the convening of the International grand committee:
“The materials obtained by the DCMS committee are subject to a protective order of the San Mateo Superior Court restricting their disclosure. We have asked the DCMS committee to refrain from reviewing them and to return them to counsel or to Facebook. We have no further comment.”
Allan seemingly failed to answer the question put. Following the hearing, Facebook released the following statement:
“The engineers who had flagged these initial concerns subsequently looked into this further and found no evidence of specific Russian activity”
Following the hearing, the members of all the Parliaments present signed a joint declaration on ‘Principles of the Law Governing the Internet’. The declaration read as follows:
i. The internet is global and law relating to it must derive from globally agreed principles;
ii. The deliberate spreading of disinformation and division is a credible threat to the continuation and growth of democracy and a civilising global dialogue;
iii. Global technology firms must recognise their great power and demonstrate their readiness to accept their great responsibility as holders of influence;
iv. Social Media companies should be held liable if they fail to comply with a judicial, statutory or regulatory order to remove harmful and misleading content from their platforms, and should be regulated to ensure they comply with this requirement;
v. Technology companies must demonstrate their accountability to users by making themselves fully answerable to national legislatures and other organs of representative democracy.
The DCMS’ ‘fake news’ inquiry is ongoing and further evidence is set to be heard on the 5th December. A full live video of testimony given during the International grand committee hearing is available here.
Met Police to launch armed units to combat knife crime and violent gangs
Finally, news has come to light of plans by the Metropolitan Police Service to introduce armed units to the streets of London. The plan forms part of the effort to tackle knife violence and violent gangs. Knife attacks have led to scores of young deaths in the capital, with over 100 deaths in the London this year.
Reporting for the Guardian, Vikram Dodd set out the scale of the Met Police’s plan. Apparently the plans will see armed foot patrols on duty in areas where there are high rates of violent crime. The decision as apparently still open to consultation before it is finalised.
According to the Met’s head of firearms, Commander Kyle Gordon, there will be a two-fold benefit of having armed officers in neighbourhoods:
“Would there be benefit in the [armed] officer getting outside their vehicles, and either being static or walking short distances in an area to do two things; be seen in instances where we believed that would enhance community confidence and where we believe it would disrupt and deter any violent activity?”
These armed officers would have their main weapon and a pistol visible and accessible. Allegedly this will deter gang and knife crime.
Concerns over the plans
Deborah Coles, the Executive Director of INQUEST, an organisation that specialises in supporting the families of people who have lost their lives in state related deaths, took to Twitter to express her reservations over the proposal:
Temi Mwale, director of the 4Front Project, an organisation ‘empowering young people & communities to live free from violence, while understanding the systemic conditions that cause it’ has argued against aggressive policing and prosecution of children and young people using knives. Read more in Legal Tea with B (09/11/2018).