UK Contests European Court of Justice Case on Article 50 Withdrawal, Averring No Way Will It Back Out of Brexit

Wellie, for those of you who were hoping that the UK might wake up from it derangement,1 channel its inner Emily Litella, and say “Never mind” to Brexit, the Government has dug itself in deeper on its current plans.

Some readers had pointed hopefully to a case lodged at the European Court of Justice by the Inner House of the Court of Session in Scotland on whether the UK could unilaterally withdraw its Article 50 notice. We were at a loss to understand how this case would be helpful to the Remain camp, since the EU has all but said it would let the UK back out of Brexit up to the very last moment. But for that to happen, the UK has to ask, and we didn’t see that happening.

This reading was confirmed by a policy paper published yesterday on the case, Wightman and Others v Secretary of State for Exiting the European Union. I infer that this paper summarizes the arguments that the UK is making before the ECJ. Key section:

The United Kingdom Government contests the admissibility of these Questions which amount on any view to a request for an “advisory opinion”, on the basis that the CJEU has long refused for very good reasons (a) to answer hypothetical questions; or (b) to provide advisory opinions.

Any true dispute about the meaning of Article 50 (which is a provision operating on the inter-state plane) would have to be between the UK and the remaining EU Member States (EU27). The Questions are hypothetical for two very simple reasons. 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. Second, the reaction of the EU27 and EU institutions to any such imagined revocation is unknown. So, even were the EU27 to take the view that their consent was required, they might agree to it as proposed in any event. This means that the terms of any “dispute” are theoretical without the full facts and context of: (a) a hypothetical revocation being known; and (b) the reaction of the EU27 and EU institutions to that particular hypothetical revocation being clear…

The Treaties make provision for the CJEU to provide advisory opinions, but only in strictly limited cases: the opinion must concern the legality of a proposed international agreement; and the opinion must be sought by an EU Member State or institution, rather than a private person. To allow national proceedings to be used as a route to circumvent these limitations would be a misuse of the preliminary reference procedure.

So full speed ahead!

On a different front, some bad news for those who thought a trade deal with the US could make up for the dampening effect of reduced exports to the EU. Auto parts are one of the UK’s major export sectors. Readers like vlade had already pooh-poohed the idea that the UK would be able to make progress in selling more car inputs to US automakers (ie, they’d presumably already have been trying for decades; an increased sense of urgency would not be likely to yield better results).

Politico this evening describes that EU officials are concerned that Trump plans to force European carmakers to shift more high-end production to the US:

Brussels fears U.S. President Donald Trump is out to poach the most valuable part of the European auto sector: the manufacturing of engine components, from electrical systems to fuel injection pumps.

Europe’s big car exporters such as Germany, Spain and the Czech Republic are looking on with horror as Washington’s trade negotiators seek to bring in a new points-based system within car quotas that rewards foreign carmakers for making more parts on American soil.

Looking at the way Trump is seeking to roll out quota deals with Canada and Mexico, it has become increasingly clear to EU trade officials that the U.S. strategy is to snatch top-end auto manufacturing away from Latin America, Asia and Europe and bring it to the U.S.

The American plan is playing especially badly in Germany, heartland of the EU motor industry. While big German carmakers assemble vehicles in the U.S. and Mexico, many high value-added components are still made in German factories.

One of the big impediments to the US bringing manufacturing back to the US is the loss of skills, not so much factory floor level but of supervisory and managerial personnel. Forcing multinationals to move their experienced employees to the US is one way to solve this problem.

Also, if you have a strong enough stomach, you must read a leak to the BBC, In full: The notes of apparent plan to sell Brexit deal. Reuters reports that No. 10 denied it:

The misspelling and childish language in this document should be enough to make clear it doesn’t represent the government’s thinking. You would expect the government to have plans for all situations — to be clear, this isn’t one of them.

In fact, the Government’s own Brexit papers have famously had typos, so an internal memo not being polished isn’t the most credible basis for a denial. In addition, it reads like conventional marketing blather. So it’s not nuts to think that this was indeed a plan that was under consideration. And in any event, the plan it set forth has been trumped by events, since the Cabinet did not review a new deal on Tuesday as planned. The Prime Minister has apparently told them to be on call for a special session later this week. Needless to say, any slippage on an already very tight schedule does not bode well for having an emergency EU Council summit later this month.


1 We are not saying Brexit was intrinsically a bad idea. However, for it not to produce tremendous economic and legal dislocation, as well as a permanent reduction in the standard of living of UK citizens, the Government would have had to undertaken a war-level mobilization of resources and expertise, as well as engage in industrial planning, to which Tories are allergic. The UK even now seems to have no clue as to what it means to be in the Single Market, and what adaptations it need to make to function outside it.

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  1. A Johnson

    Departure from the EU by any member state will have implications for the leaving member state and its inhabitants as well as the others in the union and their inhabitants.

    A vote from one member state to leave would therefore seem undemocratic to the union if there was not a vote across the whole union.

    Those voting from the departing state are voting for themselves. Those also affected by their deoarture who are in the other states are not consulted in an equal democratic way. An example of those most affected are the ex-patriots, those from the union now residing in the departing state and those in the union who trade with the departing state etc. These are a few examples but the list is endless as it stays futures for all in the union and takes away peoples’rights.

    For those people affected and those people whose rights are affected but have not voted, the union has a duty to protect their rights. The protection from the union to its people should feel strong and supportive. Peoples’ rights cannot be removed without compensation if they did not have the opportunity to vote to lose them.

    Therefore, to appear to be truly democratic a referendum for a state to either continue or depart should be put to the all the people of the union.

    1. Yves Smith Post author


      The Brexit referendum was advisory, not legally binding. Parliament is sovereign and Parliament is a democratic body. Whether to go to war or not has tremendous consequences for the public, yet it is not put to a vote and that is not seen as undemocratic, weirdly despite mass protests against the war in Iraq. I was in Australia and protested. 94% of the public was against the war, a level that does not exist in polling. Yet when Oz joined the “coalition of the willing,” citizens fell in line (although at least the press in Australia did a fine job of covering how awful things became for ordinary people in Iraq, something totally absent from the US media).

      I actually think it would be a big step forward if the public were allowed a direct vote on wars. However, a matter like Brexit is very poorly suited to a referendum, since the UK did not have and still does not have any idea of what sort of Brexit it will have. People knew what staying in the EU meant, but Brexit was not and could not be well defined, and that allowed the Leave campaign to take advantage of the amorphousness in their messaging.

      1. RBHoughton

        Allowing the public a vote on wars would be a great leap forward for real democracy. It only requires the ejection of factions from the debating chamber and its return to representatives of the people.

      2. fajensen

        I actually think it would be a big step forward if the public were allowed a direct vote on wars.

        I think it would be much more effective (as in avoiding frivolous wars) to introduce mandatory military- (or societal- service for people against the military on principles). Put some real skin back in the game.

        Like in Switzerland. Everyone between 18 and 45 just has to spend time on this service, and it is really hard to be exempt.

        The first advantage is that now there is a risk that one’s son, daughter, friend, parent and oneself might go out in some useless adventure.

        The second is that when one is not exactly war-fighting, there is training. My Swiss colleagues assures me that the affection and love for Guns wear out after cleaning the b*strd after every exercise.

        Third, one is forced to sped time with people one does not want to spend time with and learn how to deal with this effectively. Across class-, race- …et. cetera. and other engineered divisions.

        Fourth, the consciencious objectors can do useful work maintaining and repairing all those things that are neglected because they are too small and too scattered to run up a proper procurement for them.

        In Denmark, a whole generation of competent leaders emerged from the forced military service – because they learned to deal with people that they did not want to interact with normally.

    2. ChrisPacific

      And if 100% of the UK voted to leave but the overall result of an EU-wide referendum was for the UK to remain, how democratic would that appear?

      What about other matters that might impact EU citizens residing in the country in question, like changes to taxation policy on social services? Should they get a vote on those as well? I don’t see how your argument is specific to exiting the union. If they do, what’s the point of continuing to have national governments, if they don’t represent a voting majority that’s sufficient for making policy?

      Your argument essentially amounts to a suggestion that the EU operate as a single country. You can take a poll on that if you like, and see what level of support exists for it (the process the UK has invoked is set out in Article 50, so your objection is really a criticism of the EU and its policies). I think you would get a lot of very vocal opinions along the lines that none of the member countries had voted to surrender their sovereignty to that degree, and they had no intention of doing so, thank you very much.

  2. Colonel Smithers

    Thank you, Yves. Splendid as always.

    Just a couple of comments.

    It’s interesting that you bring the automobile industry into the picture. In 2009 – 10, a colleague and I acted as sherpas for our CEO and conferred with our counterparts for German automobiles and French agriculture. The purpose was to get allies in the fight to stop an EU led crackdown on bankster pay. We would lobby UK MEPs (not just Tory family bloggers, but their equally neoliberal Labour and Liberal peers, too) to lay off the car industry and big ag, and they would do likewise with their MEPs. The alliance was kept informal and did not go far, but, apart from easy to get round limits on bonuses, nothing too egregious emerged to upset the pre-crisis status quo.

    It’s not just Tories who are allergic to industrial planning, even on a war level scale. As Vlade correctly pointed out about Labour’s Brexit stance and apparent inability / refusal to learn about the EU yesterday, Labour does not appear or want to understand what it is / will be required to do if / when it inherits the Brexit mess and, perhaps, avoid that mess being worse than it has to be. There are young Tories, “clean skins”, who would not be too put out to sit in opposition for a few years and watch the “dream team” of Corbyn, MacDonnell, Abbott etc. clear the Tory mess, hand over Northern Ireland, give the Scots independence etc, i.e. get the hard and bad stuff done for them.

    1. Redlife 2017

      Colonel – you have hit the spot where I am worried about Labour. They are still stuck in the old paradigm of what British politics “is”. They have no idea what [family blog] is about to be put in their lap.

      I’m looking to gauge how much the upper levels in the Labour party understand the mess it’s going to be in if/ when they get into power. Because 1) Brexit and 2) Any whiff of socialism will be dealt with in the most brutal manner by internal and external forces. They think they will have power. But in a moment SWIFT could be cut off from the UK (cause Trump and others can) or the bond vigilantes or equity shorters would scorch-earth the markets – I’d like to see how long democratic socialism would last in that situation.

      I am beginning to believe that we are seeing a massive inflection point that will blow up quite a lot of what is standing in British politics today. No matter if there’s a deal or no-deal. I have no idea what will be standing after what’s going to happen in the next 5 years.

      The apocryphal Chinese curse “May you live in interesting times” comes to mind.

    2. Redlife2017

      Colonel! Sorry for the multiple comments. I figured at the time there had to be some horse trading to water down that pay stuff. My personal favourite is how they just dumped stuff into “long-term bonuses” as if that will help with people being short term. People forget that after the initial vesting, you essentially get a long-term bonus every year. And you have to make sure the company can pay that long-term bonus – EVERY YEAR. So it weirdly leads to even more risk-taking and squeezing of the peasants in the firm.

      For non-bankers – I note the squeezing of the peasants because I do not believe you can find a more hierarchical industry outside of politics. The peasants = those who do not generate money (i.e. money sucks), e.g. Back & Middle Operations, Compliance, IT, Risk, and to some extent Marketing. Outsourcing and offshoring always happens to the peasantry first (First they came for the Back Office and I said nothing because I was not from the Back Office, etc.). Only when outsourcing/offshoring are maximised with the peasants can we move on to the lower level nobles (fund management, client service, sales).

      1. Colonel Smithers

        Thank you and well said, Redlife.

        What is also puzzling about Labour are the lack of feelers put out to like minded souls across the Channel and engagement with EU27 officialdom and power brokers beyond a few high profile visits to Brussels to show Remainers that Labour cares / is engaged.

        Vlade and I often chat about that nothing will ever be the same, echoing your point about an inflection.

        See you next week.

    3. vlade

      Ah, Diane “I can’t do basic maths” Abbot. Who needs enemies with friends like that? Almost would qualify for a Tory minister… Shows you that tribal loyalty is more important than competence across political spectrum.

      1. Colonel Smithers

        Thank you, Vlade.

        DA also made stupid comments about nurses from the EU.

        After Cambridge, she joined the Home Office, but could not adapt and joined Harriet Harman’s motley crew, the lot who invited PIE to Parliament. W.T.F!

        The knives are out for her and Labour, but they don’t seem to be able to help themselves, even prepping for interviews etc. Perhaps, decades of such mistreatment has taken its toll and established a bunker mentality. The younger ones seem to be equally lost / at a loss.

  3. paul

    It seems to me that that the only consensus is that we are going to backslide into a no deal.
    This is because:
    a) the main protagonists don’t have any coherent idea of what they want
    b) even if they did, even they realise it is beyond their abilities.

    Hence they have decided to see what particular interests they can pursue during the disruption.

    Putting a moron like raab, who sees council housing and the nhs as the major impediments to making england great again, ‘in charge’ of negotiations and the mp for narnia, Fox, who seeks to traffick UK consumers to US conglomerates as a trade pimp ‘negotiator’ are clear signs of this.

    I think putting Scotland back in its box is certainly one of these partial ambitions and the union has certainly been putting plans in place as these stories show:

    Scotland Office to move Edinburgh base current staff 71, why will it need 3000 but to gut the devolution settlement?

    Tory DWP Secretary Esther McVey ‘fails to declare official link to shady £20m Political Campaigning Firm’.

    Some commentators yesterday were rather dismissive of the SNP’s approach, but these show how resources and powers are strongly in favour of the unionist establishment.

    1. Yves Smith Post author

      I know very little about the SNP but Nicola Sturgeon seems far more competent than any other major figure in UK politics. Of course, these days, that is not a very high bar.

      1. paul

        I would concur about her competence and add an all too rare sense of responsibility to that.

        The SNP are a mixed bag but seem to be basically social technocratic and a little too cautious, especially in the face of hit jobs from the media and explaining how much they have done, with what they have, to mitigate Westminster’s aggressive social policies.

        The comparison with the labour administration in the welsh assembly is a fair one and reflects well on the SNP.

        1. Colonel Smithers

          Thank you, Paul.

          I do wish that the SNP would ditch Ian Blackford. He seems to believe everything that comes out of Vauxhall Cross.

          Raab comes from Buckinghamshire, my neck of the woods. As with many a child of immigrants or immigrants, he needs to be more Catholic than the Pope :-).

          1. paul

            Blackford, critic of salmond, zero capital gains tax enthusiast ,eager to hear the the uk govt’s offers on devolution (that’s investment bankers for you) was extremely fortunate to be selected in Ross just as Charles Kennedy’s political and physical life started collapsing rather publicly.

            I always thought Angus Robertson, the previous leader at westminster was more effective.

            Blackford uncomfortably recalls this piece from lobster:

            The only evidence – if you can call it that – on this we
            have is the comment by former BOSS agent, Gordon Winter. Interviewed by
            Tom Mangold, for the Panorama program in 1981 that was the first BBC TV
            documentary about the British security and intelligence services, Gordon Winter
            ‘British intelligence has a saying that if there is a left-wing movement in
            Britain bigger than a football team our man is the captain or the vice
            captain, and if not, he is the referee and he can send any man off the field
            and call our man on at any time he likes.’

            Winter’s comment was the only piece of the programme which the spooks
            insisted be cut before transmission

            Like I say, its a mixed bag, but a better one is not on offer right now.

            1. Colonel Smithers

              Thank you, Paul.

              Blackford is recalled by colleagues, especially the veterans from the bit that came from NatWest.

              The other rotten apple from the shop is now Home Secretary.

              1. paul

                …and blackford is on the security and intelligence committee.

                The one that occasionally, but always demurely, inquires if the secret services might have anything they want to tell them.

                No place for anything but a very safe pair of hands.

    2. vlade

      I don’t have a problem with SNP. I did have a problem with how Salmond run the indy campaign. I suspect Leave learned from him TBH, as a number of promises he made were very clearly unattainable. I would have actually supported Scotland IndyRef, if they came out and said it’s going to be hard slog, but it will be THEIR hard slog and they believe worth in the end – because dumping Tory (and Labour) policies can be only a good thing, as can be seen from Brexit.

  4. paul

    Well no one’s perfect and I do not believe the SNP leadership was actually seeking independence but hoping (stupidly) for enough leverage for a devomax offer from westminster.

    Support for independence was at the high 20’s at the start of the campaign.

    The enthusiasm which gave a 20% rise in favour of independence was not led by the SNP leadership’s doorstop manifesto or campaigning, but the grass roots enthusiasm of the yes movement.

    There actually was a desire to include an independent currency, the groat, but that was nixed by the civil servants and economic advisors as too frightening, who then came up with a policy that was both baffling and indefensible.

    1. vlade

      it wasn’t just the pound, it was also the EU stuff – where EU was fairly clear on saying Scotland would have to get in line to get in (would likely be quick, but not automatic on I day + 1. Quick here would still mean a couple of years likely). They were also far from clear what not being in the EU on I+1 would mean (as it would have created the same problem UK is facing now, i.e. on I+1 Scotland would have been a third-party country to the EU, which would have crippled its rUK exports, institute a hard-border etc.. )

      Exactly because of the enthusiasm I believe that if the referendum promised blood, sweat and tears – but worth it in the end (and there were many, many “why it’s worth it” reasons, a lot of them better than Brexit ones I believe), I suspect it could have actually won.

      1. paul

        The referendum was about whether Scotland should be independent.
        It could only start that process afterwards and presumably manage it over a certain timetable.
        Its not inconceivable that some sort of arrangement could have been negotiated re EU involvement/relations.
        Even one of Rajoy’s ministers said that Spain wouldn’t have a problem with an independent Scotland in the EU.
        No one I saw in the yes camp thought it would be all smiles and sunshine, especially with such an unhelpful govt over the border.

        1. disillusionized

          Spain has two concerns regarding Scotland – One, it must leave in accordance to the UK constitutional framework (I.E no wild referendum)
          Two, By leaving the UK, it leaves the EU – and only then can they rejoin (so no possible NI, or East Germany’s in reverse).

        2. vlade

          The EU would take the Scotland in – after all, if it took Romania and Bulgaria, it would be hard pressed to explain why Scotland wouldn’t get a go.

          But it would still have to go via a due process, which cannot start UNTIL after Scotland left. Starting negotiations with a region, even one due to leave, as if it was a full-fledged country would set an extremely bad precedent, not just in the EU, but overall.

          Be as it may, from the outside the Indy Ref seemed like it was selling an extremely optimistic version of the future events. As Yves wrote recently, if you rely on 7 events each with 90% probability going your way, you’re more likely to fail than succeed. And the events the independence campaing relied on in their marketing were far from 90% events.

          1. The Rev Kev

            Would all states of the EU be really welcoming of Scotland applying? I seem to recall reading that Spain would not be so happy as the idea of break-away countries is something that they do not want to encourage for obvious reasons. I believe that there are other countries in the same boat.

          2. PlutoniumKun

            The problem for Scotland of course is that the Spanish and others are extremely hostile to the principle of accepting ‘breakaway’ countries in the EU for their own pretty obvious reasons. But of course once the UK is out, those particular objections don’t really apply. In fact, I think many EU countries would take a certain amount of relish in helping split up the UK post Brexit.

            The interesting precedent of course is the offer to NI to essentially stay in the EU under the general heading of ‘Ireland’. The previous precedent was East Germany. So I’m a little surprised that the SNP didn’t push for the possibility that Scotland could have an interim relationship via Dublin. At the very least, this would have given London cause for pause in their determination to ignore the Scottish issue. But I think its too late now to push this argument.

            My own view, for what its worth, is that the SNP made a crucial error post the vote. They should have said simply ‘Scotland voted strongly to Remain. As the representatives of the Scottish people we therefore will do everything politically possible to make sure we Remain, whether as part of the UK, independent, or in another form of constitutional settlement‘. Their ‘play the long game’ approach I think will prove to be a mistake, I suspect that post Brexit we’ll see a gradual undermining of Scottish self governance, even under a Corbyn government.

  5. David

    I wouldn’t get too excited about the UK paper. As the first paragraph makes clear, it’s about “admissibility” ie whether the CJEU even has jurisdiction in this matter, and the Court is politely being asked to shove off and not interfere. The “policy” is legal policy (ie that such issues are not for the CJEU) not policy about leaving the EU. The government is simply saying that one of the reasons why the Court should not bother itself with the case is that there has been no change in government policy, so the question is entirely hypothetical anyway. This kind of argument is standard practice in such cases.

    1. Clive

      Yes, for the very good reasons courts are — rightly — slow to get into hypothetical situations which may, or may not, ever come about.

      If the U.K. government announced that it was rescinding Article 50 and that was all needed to be said in the matter, the EU27 need not bother their pretty little heads over it, we’ve changed our minds, oh, well, never mind — then the CJEU would have a real, live “triable” case to determine the merits of.

      But the central thrust of the conclusion is entirely valid — the U.K. government isn’t going to reverse Article 50 and it doesn’t want anyone else getting any clever ideas, either.

    2. Yves Smith Post author

      You are missing the point. This Government has dug itself in on what was its presumed position, that it would not seek to withdraw Article 50. For everyone but Donald Trump, once you’ve articulated a stance, it is hard to back away from it.

      As for the lawyering, this is analogous to a motion to dismiss or a motion for summary judgment in the US. The fact that an argument is standard does not mean it does not have merit. The more important argument is that the plaintiffs don’t have standing to bring this case, and that strikes me as valid.

      1. David

        Sorry, Yves, I think you are missing the point. This is not the equivalent of a motion to dismiss. It is, as described, a statement that the UK government does not think an international court has standing in this kind of case, and so should not admit the case in the first place. It’s a political argument, of a kind very often made by governments, albeit couched in legal language, and saying “hands off.” One of the arguments used is that, since the case refers to a hypothetical situation, the Court cannot sensibly deal with it. The UK argument is based on its current position (ie that Brexit will go ahead) and indeed it could not be based on any other position. It doesn’t rule out a last-minute change of heart or anything else, but it’s a factual statement of a current position, not a policy statement about the future. Of course, the more outside actors are involved, the less flexibility the government will have if there are changes at the last minute, which is a major reason for asking the Court to go away.

        1. Yves Smith Post author

          As I said in the post, this is not a legal filing but I assumed it was a summary of a position that was or would also be set in a legal brief to the court, either as what would be an amicus curiae brief in the US or a filing as a party of interest. I don’t see how what I wrote could not be more clear:

          This reading was confirmed by a policy paper published yesterday on the case, Wightman and Others v Secretary of State for Exiting the European Union. I infer that this paper summarizes the arguments that the UK is making before the ECJ.

          And saying that the parties filing the case don’t have standing is a showstopper when accurate. Standing is a threshold issue.

  6. Anders K

    Fun news, related to the (lack of) preparedness for Brexit, from the mouth of Dominic Raab:

    Key quote:
    “I hadn’t quite understood the full extent of this,” Raab admitted, “but if you look at the U.K. and look at how we trade in goods, we are particularly reliant on the Dover-Calais crossing. And that is one of the reasons why we have wanted to make sure we have a specific and very proximate relationship with the EU, to ensure frictionless trade at the border. I don’t think it is a question so much of the risk of major shortages, but I think probably the average consumer might not be aware of the full extent to which the choice of goods that we have in the stores are dependent on one or two very specific trade routes.”

    Basically, Raab is admitting to not having realized the reliance on frictionless trade and how problems at Calais can scupper logistics for most of Britain.

    As sci-fi author Charles Stross mentioned, this sort of incompetence would not be believable in fiction. Reality, however, has no such compunctions.

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