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
Jolyon – one issue about the UK’s potential revocation of Art50 is that although the threat to revoke might strengthen the government’s negotiating hand, an actual revocation would be an admission of defeat. The UK’s status within the EU hierarchy would not necessarily be restored to its current position.
Although the UK’s status might not be restored, it might leave us less worse off than continuing with a Leave. Meanwhile, from the EU’s point of view, it could be beneficial to have an example of a nation that looked into the abyss and pulled back at the last moment – upon which, the magnanimous EU demonstrated 1) it can forgive and welcome back into the fold an errant sheep and 2) we’d have been better off not trying to leave at all.
Extending a metaphor I saw somewhere recently, it depends whether you’d rather a continuous drip of poison (to which you might eventually become immune) or death by car crash. It would be nice to think that between either: destroying the future of an entire nation or: admitting a mistake; that the individuals in charge at the time might be grown up enough to acknowledge a wrong turning.
Thank you for all the hard work you do on this.
You bring sone clarity to the matter.
For Remain there is also a need to pay attention to the long game: to remain unwillingly would be storing up trouble for decades to come. It is vital to convince the country that there are many good reasons to remain, not just reasons not to leave. Despite the mess the referendum has created, perhaps there is scope for the UK to emerge as a nation of good Europeans.
Aside from the scenario of constitutionally legitimate revocation occasioned by a second referendum, another constitutionally legitimate circumstance comes to mind: that Parliament says “do not proceed”.
Why would it?
Firstly, if any deal under negotiation proves terminally unattractive.
Secondly, if May’s government loses its majority, something that might happen either by slow erosion through by-elections; or seismically because the Crown Prosecution Service brings and wins cases against Tory MPs for breaching election expenses regulations at GE2015: over 20 MPs in marginal seats are implicated. With a Tory majority of only 12, once 7 seats change hands May will be head of a minority government.
Thank you for casting some daylight on this issue and the democracy of it all. I have believed for a while that the best way forward for all concerned is that the UK hold a referendum in Jan/Feb 19 to choose between (a) leave on the basis negotiated (whether that be a deal or no deal is for HM government and its negotiators) and (b) revoke the Article 50 notification.
I suspect HM government already know that this is the most sensible and most likely denouement but fear that to admit as much will damage their negotiating position. They’re wrong. Doing so will open the door to talking with the EU about what people object to about it and enable them to make such reforms as are practical to make remaining a more attractive proposition.
That may upset the blinkered brexitologists obsessed only with leaving regardless of the consequences but it should appeal to responsible politicians driven by what’s best for the people of the UK.
Clutching at straws here – read into Article 50 the right of a ‘genuine’ revocation to avoid the obvious problem that reading in a simple revocation power could considerably strengthen the departing state and so is a strong reason for the CJEU not to read in such a power (which a plain reading of the article suggests does not exist).
The obvious problem with any such ‘genuine’ or ‘sincere’ revocation power – whether couched in constitutional arrangements or not – is that the power would only be relevant in circumstances where all the other states did not wish for the state to remain – otherwise the issue would not arise – and so the decision on whether the revocation was genuine or not would then go to CJEU – why on earth would they want to decide such political questions? Imagine the conflict and legal uncertainty. They wouldn’t and certainly not when there is the plain reading available: its not revocable except with the agreement of all other states.
I agree that Article 50 is not something that exists outside the real world; and that it is clear that if the 27 member states were to agree, then time can be extended and the notice under Article 50 can be revoked.
There is some scholarly assistance in texts dealing with customary international law that appear to support a supposed right of countries to revoke treaties unilaterally – but that doesn’t appear to be analgous to the revocation of a notice given under a treaty to withdraw from the treaty in any event.
However, when considering the Vienna Convention provisions, the support of a unilateral right doesnt appear to be recognised at all and once in force, a treaty is usually considered as continuing in force until the contracting parties agree otherwise.
The Vienna Convention does recognise the situation where the treaty in question gives parties unilateral rights to withdraw and the terms of the treaty are then considered to be paramount in understanding that.
So then we look at the Lisbon Treaty and consider Article 50.
From memory, I don’t remember any general provision in the treaty that provides for notices made under it to be revoked unilaterally – and I do not consider the leaked draft EU Parliamentary resolution as doing anything other than confirming that the 27 member states can agree to permit the UK to revoke the notice.
Article 50 merely refers to the position of extensions of time and if agreement is not reached, then the EU treaties would cease to have effect at the end of the 2 year period. What I fail to see is a power that enables the UK simply and unilaterally to revoke the notice even if the other 27 members states or any of them object to that revocation. As a result, without more, I don’t agree that such a unilateral right or power exists.
If we then consider the basis of the potential for 27 members states permitting the UK to revoke the notice – on what terms would such an permission be given?
On a stylistic note, a notice is given, surely it should be a question of whether that notice can be withdrawn rather than revoked.
I agree with you (though without the legal basis that you can bring to your interesting collection of posts) that the UK may probably unilaterally sincerely revoke its Article 50 notification; and that it may not play games by insincerely revoking and immediately renotifying. This last was a fear that the EU began to express almost immediately after the referendum result.
I also agree that a referendum on the terms is needed to Remain – absent a fresh mandate MPs will still feel bound by June.
Where I am less sure is your statement that “It’s clear it can be revoked with the unanimous agreement of the remaining 27 member states.”
That is what the European Parliament says in its latest resolution on Brexit. And as a matter of politics it is almost true – it is hard to see a case brought by Nigel Farage succeeding in the ECJ against the unanimous views of the EU and member states.
But is it true as a matter of law? After all, Article 50 does not prescribe that process. So it is one that has to be read in (just as unilateral revocation must be). What is the argument for reading it in?
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Is the case going forward in acceptance of the notification being valid then? What about the question of whether there was ever an actual legal decision made, since the referendum was advisory and the Supreme Court in the Miller case said parliament had to make the decision but all they’ve done is agree the government can invoke Article 50 and when they were voting they were told that this wasn’t making the decision to leave as the decision had already been made. Aren’t they back to square one again in that parliament has to actually vote to leave the EU?
The word ‘should’ in the referendum question could be interpreted as a duty or probability or merely advisory.Even if it intended to express a duty, The Supreme Court has ruled that Parliament must give its consent to the terms of leaving. What if Parliament withholds its consent to the terms negotiated?
Thank you for this piece and the clarity you continue to bring on this topic.
I accept the point that a unilateral revocation must be ‘real’ in the sense that it must accord with our constitutional requirements. However, I am not sure I come to the same conclusion as you (that it will have to be a “genuinely expressed and real desire to revoke”).
With Parliament being sovereign, then as a matter of law if Parliament passes an act stating a decision to revoke, surely that decision would accord with our constitutional requirements regardless of whether or not it was a pretence? I accept its most likely a fanciful scenario in practice, but a compliant Parliament could pass an act of revocation, knowing full well that it was merely to extend the negotiation time. For all intents and purposes it would be a ‘sham’, but legally it would surely be no less valid than a genuinely expressed and real desire to revoke?
I also said “real”. It would be clear that an Act of revocation that Parliament passed that was a pretence was a pretence. A purported re-triggering would be ignored; we would already be out without a deal.
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I disagree with Alex. If Parliament passed an act stating a decision to revoke the Article 50 notice before the two year clock runs down which the remaining 27 voluntarily accepted (or if the Irish case is successful, were obliged to accept), surely the leaving process immediately stops. It would take a further act of Parliament to invoke Article 50 afresh, and in any second negotiation no quarter would be offered. A pretence doesn’t improve the UK negotiating position as it is functionally identical to a hard Brexit, which presumably the government would be trying to avoid by introducing a revocation bill in the first place.
Let’s say we left with no deal today.
We start collecting the import tariffs and start paying the export tariffs tomorrow. By the end of the day we realise we have collected more than we have paid. So we distribute the import tariff money to our exporters to compensate them, and we still have some money left over. Good.
The EU admits that 90% of new trade in the future will be outside the EU. So let’s go for some of that, now we can unilaterally decide to do so. We decide not to impose any tariff on any imports from any country on our list of recipients of aid. Nice, ethical foreign policy that we can now have. We work on other deals and non-EU trade starts to grow. We use some of our profits from tariffs with the EU to subsidise our tariff costs to other countries. All good so far.
We keep our EU environmental standards and employment standards in our National Law, as planned in the Great Repeal Bill. We can keep immigration going by having a green card system so wherever in the world you come from you are treated equally, rather than having an advantage if you are particularly “European” in appearance.
We don’t have to bail out Greece or the Italian banks. We don’t have to pay for the infrastructure of other countries.
So far, it looks pretty good.
So tell me, why would you apply for membership of the EU the day after tomorrow?
(1) your surplus of tariff income perhaps is based on our trade deficit? It also assumes that tariffs are set at the same rate on exports and imports. And you are relying on nothing changing as a result of leaving single market and customs union. I have no better idea of what would be the net tariff income/ cost, but would hesitate to base even an economic decision on it.
(2) sounds like an illegal export subsidy under WTO rules, but you should consult an expert.
(3) l can’t find the EU “admission” you quote. The 2015 trade strategy document says “90% of future global growth will happen outside Europe’s borders.”, which is a little different. We can of course unilaterally decide to go for some of that now. Nothing about being in the EU stops us being an export powerhouse like, say, Germany.
(4) you policy of differential tariffs sounds like a breach of WTO rules which require equal treatment of all in the absence of formal trade agreements, but again you should consult an expert on what would be needed to implement it. The EU has existing free trade agreements with most poor Commonwealth countries so your proposal would merely get us and them back to where they are now.
(5) the EU already has a range of free trade and sectoral agreements with other countries covering 90% of what we sell. So we would lose those. Then you would negotiate new ones which would come into effect after a delay. Would the new ones be better for us? Yes, because we would not have to take into account the interests of other member states. No, because we would be in a weaker bargaining position. I’d guess the latter would be more important.
(6) the “great repeal bill” only keeps things constant for day Brexit+1. Thereafter the government is free to drop protections. It has just promised that the first law to go will be the EU Charter of Fundamental Rights. I do not share your confidence that all will just fine as regards existing protections.
(7) freedom of movement is not based on appearance. If you are say a Swede of Viet Namese ethnic origin you have the same rights to freedom of movement as if you are tall and blond. We give freedom of movement to our neighbours who are close and share the same values. We could of course give freedom of movement to citizens of countries that are distant and share the same values if we wanted to.
(8) we do not have to contribute to Eurozone bailouts now. We pay a net contribution which covers a range of activities that boost all-EU cohesion and prosperity including infrastructure in other countries.
(9) l would like to remain in the EU because it is the great European peace project that has supported peace between member states and acted as the political counterpart to NATO. Because it is the great European freedom and democracy project that has helped countries transition from dictatorship to democracy and so made our continent better and safer fir all of us. Because it is a project that gives us individual rights to move, live, visit, study, marry across Europe without needing the permission of an immigration officer. Because it brings the people of Europe closer together.
What I would like to find out is, now that May has called for an election, could the winning party stop the process and force us to remain in Europe?