Brexit update (4). A “third way” for the UK parliament?

 

As we all know, the UK government gave notice of withdrawal from the EU under article 50 on 29 March 2017. Article 50(3) provides “The Treaties shall cease to apply to the State…from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification…”. The European Union Withdrawal Act 2018 provides that parliament will vote on any agreement between the UK government and the EU Council (if there be any such agreement). If parliament votes against the agreement and no alternative is proferred the UK leaves the EU at 11pm on 29 March 2019, the so-called ‘Brexit forte et dure’.

However, there may be a third option open to members of parliament wishing to take back control – to vote to revoke the notification under article 50 and to stay in the EU – at least for now. The UK government and the Commission take the view that a notice of withdrawal, as is the case with a similar notice under a time charter, once given cannot be revoked. But are they right? In Andy Wightman MSP v Secretary of State for exiting the European Union[2018] CSIH 62 the First Division, Inner House, Court  of Session has referred this question or a preliminary ruling under Article 267 of the Treaty on the Functioning of the EU to the Court of Justice of the EU under the expedited procedure. The question framed is:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU”.

If the CJEU rules that unilateral revocation is possible, then we are in for interesting times in 2019.

 

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Professor Simon Baughen

Professor Simon Baughen was appointed as Professor of Shipping Law in September 2013 (previously Reader at the University of Bristol Law School). Simon Baughen studied law at Oxford and practised in maritime law for several years before joining academia. His research interests lie mainly in the field of shipping law, but also include the law of trusts and the environmental law implications of the activities of multinational corporations in the developing world. Simon's book on Shipping Law, has run to five editions and is already well-known to academics and students alike as by far the most learned and approachable work on the subject. Furthermore, he is now the author of the very well-established practitioner's work Summerskill on Laytime. He has an extensive list of publications to his name, including International Trade and the Protection of the Environment. He has also written and taught extensively on commercial law, trusts and environmental law. Simon will be a member of the Institute of International Shipping and Trade Law, a University Research Centre within the School of Law, and he will teach on both the LLM (Carriage of Goods by Sea, Land and Air and Oil and Gas Law) and LLB programmes at Swansea.

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