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Fixing Brexit: revocable notice

8 November 2016

Readers of this blog will be well aware of the dreadful negotiating position which the UK faces under the terms of Article 50. My cunning plan to get around this has been scuppered by the High Court ruling in Miller v Secretary of State for Exiting the European Union: now the legal requirement for parliamentary approval is evident (unless appealed). But curiously this now gives us a different route to turn Article 50 on its head and make it work to our advantage.

Instead of appealing Miller to the Supreme Court, the Government should immediately introduce a short bill to notify the European Council of its intention to withdraw from the EU – subject to a second clause, making this notice expressly revocable by further vote of Parliament. That way negotiations can proceed without the massive disadvantage of the two year fuse set out in Article 50(3). It is hard to see that the EU can reject such a notice. While in theory this could require a succession of further notices until a satisfactory deal is reached, the practical outcome will be that the UK can obtain a far more beneficial exit, quite probably in a shorter time frame as the opportunities for brinkmanship are removed. Parliament can give Mrs May a free hand to negotiate without what she sees as damaging public scrutiny in the knowledge that it has the final say. Leavers and remainers should welcome such an outcome; but not the most ardent Brexiters determined to prefer the will of the people expressed under the veil of ignorance prevailing last June to that of Parliament (with or without further advice from voters) based on a full understanding of the implications.

Postscript, 9 November

For those of you who think that revocable notice isn’t possible, several points should be made. Firstly the matter was not ruled on in Miller, since neither party ran an argument which was unhelpful to their position, and so the case was heard on the common ground of irrevocability (although the Lord Chief Justice questioned Lord Pannick during his submission on this). But the possibility is mentioned in this excellent analysis by Christopher Forsyth which appeared after my post, and which draws attention to the excellent arguments set out by Aurel Sari here. But while the law may be uncertain, the politics I outline are real enough: by passing the Bill with the clause, it is up to the EU to object to a notice given by act of parliament “in accordance with the constitutional requirements of” the member state, which (however much they hate it) they will be unwilling to do. And if they do try to challenge the validity of the notice, there is no time fuse forcing us to concede.

Postscript 2, 20 December

Readers will be aware of more recent developments posited on the same idea, that Article 50 notice may be revocable, and is the best basis for the UK to avoid the impending disaster created by the two year drop-dead clause in Article 50. The question is how to do it. Most attention has been focused on the crowd-funded scheme devised by tax lawyer Jolyon Maugham QC. This involves taking action in Ireland which it is hoped will be referred to the EU courts for a decision that would bind all member states including the UK. Not everyone agrees that this is the best approach: David Allen Green contributed a post entitled “Why the Dublin Article 50 challenge is misconceived” in his FT Brexit commentary on 15 December (online). Among some vigorous debate, I posted this comment (repeated here as there may be a firewall on the FT site):

The difficulty with the Irish route is that it may take some time to get a decision, and it may be inconclusive. A simpler route would be to build the revocability into the UK’s Art 50 notice by introducing a bill with a second clause, making the notice expressly revocable by further act of parliament. This would permit the UK to issue a series of Art 50 notices, revoking (and reissuing) for as long as it takes to get the best deal available, and thus reverse the EU’s negotiating advantage as built into Art 50. Of course the EU will dislike it, but if they start negotiating with us the problem is solved. If they refuse to do so after the issue of a notice valid in terms of our domestic constitution (what better authority than the Queen in Parliament?) we can challenge in the EU court with a strong case (given that Art 50 contains what in effect is an ouster provision). Crucially we have lost nothing by doing so – not even time, since if we lose, the clock wasn’t running, while if we win, we have used up part of our two years – but only of the first of the indefinite series of two year terms this strategy delivers.

Jo Maugham’s response to my scheme on Twitter was

It’s not within the Westminster Parliament’s power. It can enact what it likes but it will make no difference. …an Act of the UK Parliament can no more change the interpretation of Article 50 than it can alter the composition of the moon to green cheese.

But as to deciding what that composition is, the fact that the Lunarians have (through Article 50(1)) a privileged position is at least helpful. It is also relevant that while neither the Irish scheme nor mine may be certain of success, if the Irish scheme establishes that revocability is possible then my scheme would have succeeded too. But the converse is not logically required: in response to the Irish application, the EU might hold that the form of notice was a factor in deciding (possibly even a determinant of) revocability, while my idea comes with the form of notice most helpful to the case. Further my scheme brings clarity earlier, and at no expense, as in my comment above.

What is requires is a political will. Those MPs who know that Brexit is a disaster but are too frightened to speak should insist on this amendment. It is the only way for Theresa May to comply with her promise of triggering Article 50 by March without inflicting the gravest damage on this country.

From → Politics

  1. simgar permalink

    This doesn’t work. Revocability of Article 50 is a matter of law and the relevant court is the ECJ. It has nothing to do with either Westminster or British Courts,

  2. No doubt the bill could be referred to the ECJ by those who don’t like it. But you have to analyse both the legal position and the Realpolitik of passing the bill in the form I suggest. Will the EU refuse to discuss terms for exit while the referral to the ECJ is underway, once the bill has received RA, and complied with the domestic constitutional requirements? I think this would be very difficult. And if the ECJ does rule against the possibility of revocable notice, that simply invalidates the clause 1, so we have lost nothing (and potentially gained a lot of information from the commenced negotiations).

  3. I am not convinced in the least that Article 50 is unilaterally revocable for the following reasons:

    1. Article 50 expressly provides that withdrawal from the EU takes place as provided by the withdrawal agreement negotiated under Article 50 or, if there is no such agreement, two years after service of the Article 50 notice.
    2. As withdrawal is expressly addressed by Article 50 and EU law, by virtue of the lex specialis principle the Treaty of Vienna rules regarding the revocability of notices of withdrawal do not apply in the way that proponents of revocability have suggested
    3. Although the ECJ can have regard to general objectives of the Treaties as proponents of revocability have suggested, unilateral revocation is not necessarily conducive to those objectives for the EU27. It would be entirely inappropriate for the CJEU to take a decision as to what is in the interest of EU27 and their citizens in the absence of unanimity of those countries as to the desirability of UK’s continued membership. Alternatively the court may decide that those general objectives would only be served if the UK’s membership is preserved without the benefit of its current opt outs and other preferential treatments – which would be politically unacceptable for the UK. I would also question whether countries having the right to serve but then revoke withdrawal notifications could have a destabilising effect on the EU unduly prejudicing the interests of its citizens.
    4. In contract law notices of termination cannot be unilaterally revoked. Treaty law is based on principles of contract law.
    5. Unilateral revocation would be challenged creating intolerable uncertainty while the case is litigated before the CJEU. Think of Miller squared!

    Therefore the service of the Article 50 notice should be regarded for all intents and purposes as irrevocable on an unilateral basis. It matters not whether an Act of Parliament requires the Government to revoke the notice if Parliament does not endorse the exit deal; if no right to revoke the notice exists under EU law, UK law cannot rectify the deficiency. The Government can nominally revoke the notice, but once the notice is served the Treaties set out the consequence – departure from the EU (in the absence of agreement to the contrary by UK and EU27.

    That is why I suggest that Parliament should authorise the service of a notice of UK’s intention to leave the EU subject to Parliament’s ratification of both the exit deal and the ongoing Treaty that will replace the UK’s participation in the EU Treaties. In other words the decision to leave the EU should be conditional on subsequent confirmation by Parliament. The notice which Parliament authorises the Government to serve should be expressed as being on that basis. If that Parliamentary confirmation is not forthcoming a decision to leave is not reached so the pre-condition for Article 50 to take effect is never met, and the notice to withdraw never becomes valid.

    Against this it can be said that where a decision to leave the EU is conditional on subsequent events, it does not satisfy the requirements of Article 50, because a decision to leave the EU will not actually have been made until the condition is met. On that basis the EU would be able to reject service of the Article 50 notice EU27 and refuse to negotiate. I find it hard to believe that the EU could do so in practice. The ‘decision’ to leave, conditional though it may be, would have been taken in accordance with the UK’s constitutional requirements, and a refusal by the EU to negotiate would in effect be seeking to imprison the UK within the EU, holding it hostage to an inherently one-sided process exit process.

    By making its decision to leave the EU conditional on agreement of the terms for its exit etc. the UK could negotiate on the basis that it could remain in the EU (perhaps on renegotiated terms) if acceptable terms cannot be agreed. This would create the possibility of a genuine negotiating strategy, which of course requires a credible alternative to whatever exit deal it pleases EU27 to offer us, unlike leaving the EU without any deal at all which patently is not.

    In other words I agree with the sort of approach that you have outline, but I feel it needs a bit of tweaking to avoid falling foul of EU law.

  4. In fact I think we are saying exactly the same thing, with one cosmetic difference only: namely the vocabulary attached to the operative clause that allows Parliament to withdraw/cancel/revoke or annul the notice. We both agree that an act with something along these lines may not be a proper A50 notice were it challenged in EU courts, but that the real advantage is the time it buys when the notice is served and the political difficulties that arise for the EU should they reject the notice and are seen to be interfering with UK domestic statutes. And if they accept the notice on our terms, the problems are solved.

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