There are many unanswered questions about Brexit; hard or soft, customs union or Single Market, ongoing contributions or not (without even mentioning the fate of the NHS’s £350m every week). This is an area of politics rife with uncertainty. It’s still not certain exactly who gets to trigger the Article 50 notification under the Lisbon treaty to start the formal leaving process. This week the High Court heard the challenge from Gina Miller and others asserting that Parliament, rather than the Executive, has to assent. Whoever wins, the result will be appealed to the Supreme Court before the end of the year, the Prime Minister having given assurance that she will not trigger it before the result is known. The full uncorrected transcripts of this hearing are available even now on the Judiciary website – an excellent public service.
Yet there is an even bigger unanswered question – one which could instantly transform this headlong rush into a sensible debate at a stroke. I suspect that many people don’t know it’s unanswered because an answer has been assumed – by nearly everyone. Here’s the question:
Once triggered, can Article 50 be revoked unilaterally?
The assumed answer is that it can’t. However, let’s look at the Article itself.
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
- For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
- If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
On initial inspection, it looks as if an Article 50 declaration might be irrevocable, except by bilateral agreement between UK and EU. There’s certainly no mention of revoking it. Both the UK Government and those challenging its power to invoke Article 50 say that it’s not possible. However, the absence of a mention is not the same as mention of an absence. As legal commentator David Allen Green points out in his article for the Financial Times, the treaty is silent on revocation. Assertions about revocability or otherwise have no firm legal basis. However when asked about whether a unilateral revocation was possible, European Council President Donald Tusk said “Formally, legally, of course yes.” (About 25 minutes into the video.) Green remarks that this is not merely a political comment, but a legal one too.
This question is much more important that the current court case about who gets to trigger Article 50. If not revocation is possible (as has been widely assumed in the UK press and political circles) then triggering Article 50 tips the country into a pipeline from which there is no return; Brexit becomes inevitable at that point. Indeed, this assumption is at the heart of the court case. If there is no return, then the very triggering of Article 50 starts the inevitable removal of rights from UK citizens which requires an Act of Parliament, hence the need for Parliament to agree to pulling the trigger.
If however the UK Government could decide during the two year negotiating period set out in Article 50 that things weren’t looking so good and unilaterally withdraw, then that changes everything. Suddenly, the situation changes from a bad-tempered game of chicken into a (possibly) rational exploration of possibilities. Triggering Article 50 would not be the start of an inevitable withdrawal but would start a process of mutual negotiation with the possibility of reverting to EU membership at any point.
This would also make more sense of the referendum result. The Brexiteers’ clamour that a 52/48 majority is ‘overwhelming’ is already falling apart. Rather than the basis for an irrevocable change of national policy and identity, the result could be seen as a mandate to explore fully, fairly and openly the options for the UK outside the EU. I, and I suspect many of the 48%, would have no difficulty with this position at all. Furthermore, any vote by MPs at the end of the 2 year negotation would suddenly become very meaningful, rather than a simple take-it-or-leave-it devil and the deep blue sea dilemma.
This would be a much more sensible position for the UK Government to adopt – why would it want to close off avenues unnecessarily? Several possibilities suggest themselves:
- The assumption of irrevocability plays into the Leave story that ‘it’s done, get over it’. The war is won, job done, now it’s a matter of working out the details. The nervousness of the Leavers in recent days seems to suggest that they are worried that this position may be undermined shortly.
- It also suits those who seek to assure us that Brexit is ‘the will of the people’. This concept, meaningless in the UK constitution, seems to play out such that if any politician can assert that a harmful move is ‘the will of the people’, it becomes unchallengable. And Brexit is the will of the people, right?
- Another problem for the Government is that this is not a question of UK law, but of European law. The Lisbon treaty is not overseen by the UK courts, but by the European Court of Justice (ECJ) – who would have to rule on the question. By being seen to be going to the ECJ for a ruling, the Government would be admitting that the ECJ has authority in this matter. But – the sovereignty of UK law is one of the Leavers’ main desires. How uncomfortable it would be for the Government to have to go to the hated ECJ and ask a question that might undermine the ‘will of the people’?
- Finally, a case to the ECJ might take a long time to resolve – thus extending even further the Brexit uncertainty (even if it might end up reducing the uncertainly dramatically in the end).
The very fact that the Government is uncomfortable to ask a question of legal clarity makes it very relevant to ensure that it does get asked. So, perhaps this might be a new crowdfunding target? How do we get the issue in front of the ECJ? I think that matters can’t be taken there directly, they must be referred by a national court. How might that happen in the UK?
Whatever the mechanism, it is vital that this question of the revocability of Article 50 is clarified. The consequences are immense. If the UK can unilaterally decide after negotiating that we’re better off remaining in the EU, then that’s the basis for a mature discussion. If pulling the Article 50 trigger is irrevocable, then we continue in this strange limbo land between parliamentary democracy and executive dictatorship.