Language is critical in politics and the law, not least in the unfolding political and legal machinations of the Brexit process.
The Article 50 letter of revocation stated the United Kingdom’s “intention” to withdraw from the European Union – and the word intention is crucial in this context. The implication is that an “intention” can change and that the UK can therefore change its mind about withdrawal, as long as it is following its constitution as an EU member state.
The legal Brexit spotlight has latterly turned to the Scottish courts, with a hugely significant decision made by the Court of Session in Edinburgh on 21 September.
I was involved in representing a group of petitioners who asked the Court of Session to refer a very specific question to the Court of Justice of the European Union (CJEU): can Westminster decide, legally, to unilaterally withdraw the letter of revocation of EU membership?
If so, are there any conditions in it doing so and what effect does that have on the EU member state? Their core argument was that Parliamentarians who vote on the final Brexit deal should be fully informed of the range of options available to them.
MP Joanna Cherry (SNP) was amongst the petitioners. She was joined by Green Members of the Scottish Parliament Andy Wightman and Ross Greer, MEPs David Martin (Labour) and Alyn Smith (SNP), as well as Jolyon Maugham QC.
The cross-party and cross-jurisdictional nature of the petitioners reflects the fact that all politicians and institutions want to ensure they have the fullest possible say on the issue – and to ensure that matters of EU law are considered by the relevant court.
The specific issue – of whether Westminster can decide, legally, to unilaterally withdraw the letter of revocation of EU membership – has never been considered before. And as it is very clearly a question of EU law, it is the CJEU that needs to answer the question as no other court can do it.
The UK government has thus far kept silent on whether the letter can be unilaterally revoked – all it has said is that the government will not revoke.
However, it is not a decision for government, but for Parliament – and the petitioners wish to know the answer as that will inform Parliamentarians in any meaningful vote.
The UK government says that this is all hypothetical and academic, but the Inner House of the Court of Session in Edinburgh rejected that argument unanimously on 21 September. It made clear this was a significant constitutional issue that requires an answer from the CJEU. Last Thursday [8 November], the UK government’s request to appeal against the decision at the UK Supreme Court of Session was refused by the Court of Session.
The CJEU has made it clear that it recognises this as an urgent and important issue – and have therefore expedited the hearing process. All member states and institutions have the opportunity to lodge observations and to be heard by 27 November.
The argument of the petitioners is that Article 50 can be revoked unilaterally by the UK Parliament – and there is nothing explicit in Article 50 to say that this is not allowed. Indeed, to be able to do so fits with the ethos of the European Union – and not to allow a change of mind would effectively amount to an expulsion. Again, there is no suggestion that this is allowed under Article 50.
The weeks leading up to Christmas will be crucial in the whole Brexit process. Jolyon Maugham has said it is no less than a case that could decide the state of the nation – giving parliament the freedom to cancel the Article 50 notice if it decides that is in the national interest.
He is right – but the decision is for the CJEU and the CJEU alone.
With the case fast-tracked because of its significance, the CJEU might deliver its verdict before Christmas. For Jolyon Maugham and the petitioners, it could mean – as Maugham has said – a lovely gift: Brexit was just a bad dream. Others will take a rather different view.
However, for both sides, this is a truly pivotal moment as the complex Brexit process draws towards its denouement. How the European judges define “intention” will be crucial, showing once again that language really does matter.
Elaine Motion is Executive Chairman of Balfour+Manson