Now that a notification under Article 50 has been served the focus has moved to whether that notification might be revoked. It’s clear it can be revoked with the unanimous agreement of the remaining 27 member states. The real question concerns unilateral revocability: could the UK remain in the EU just because it changes its mind?
This is ultimately a question of law – a question the so-called Dublin case seeks a reference on. More news on that tomorrow for members of the Good Law Project and those who helped fund the case.
What I want to touch on here is a narrow point but one that is a matter of interest to a number of national governments – Italy, the Netherlands, Germany and elsewhere.
And the point is this, if the UK could unilaterally revoke, would that hand power to the UK in negotiations? And, in particular, would it enable the UK to extend the two year time limit in Article 50(3)?
If you read Article 50(3) in isolation you can immediately see the concern. How, those Governments might ask, could this two year limit be policed if the departing state could simply revoke at the end of the period and re-notify?
But here’s the thing. The law does not exist as some abstract concept in isolation. It operates in the real world. And if you consider how Article 50 might operate in the real world the concern evaporates.
A decision to notify (or, indeed, a decision to revoke that notification) must be a real decision made in the real world. Indeed, this is also what, it seems to me, Article 50(1) is driving at when it talks of a decision being made in accordance with its “constitutional requirements.”
And whether a decision to leave is a real decision made in accordance with the leaver’s constitutional requirements is a question which is easily answered. You look to the facts. In the UK we had a referendum. And it was clearly understood by both sides that if that referendum delivered a ‘leave’ verdict the UK would leave. That decision to leave is a real decision.
What about a decision to revoke?
Here, again, the concern expressed in Italy, the Netherlands, Germany (and no doubt elsewhere) that a revocation might be used as a ruse to extend the negotiating period does not survive real world scrutiny. A revocation would be a real revocation if it was taken in accordance with our constitutional requirements. If the United Kingdom decided that it wanted to revoke – most likely (as I have argued elsewhere) through the mechanic of a referendum on the Final Deal or on whether to Leave with no deal – then it would be plain to the remaining 27 member states that it was a real decision to revoke. And not a pretence to extend the United Kingdom’s negotiating period.
Those member states committed to the success of the European Union will, quite properly, be concerned to preserve the integrity of the Union going forward. The project is too important to be put at risk of gaming by parochial interests.
However, equally, there is no need for those member states – which will not want to see the EU weakened by the United Kingdom’s departure – to erect an unhelpful and on analysis unnecessary barrier to the genuinely expressed and real desire of the people of the United Kingdom to Remain.Follow @jolyonmaugham
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