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Can an Article 50 invocation be revoked?

by Frank Schnittger Fri Jan 27th, 2017 at 01:50:23 AM EST

Much attention has been paid to the recent UK Supreme Court ruling that the UK Government must gain the approval of Parliament to invoke Article 50. That ruling also found that the devolved parliaments in Scotland, Wales and Northern Ireland need not be consulted on the issue. More on that anon. But perhaps an even more significant case is about to come before the High Court in Dublin:

Dublin High Court case to establish if Britain can halt Brexit

A number of Green Party leaders in Britain and Northern Ireland have been named as plaintiffs in a case before the High Court in Dublin to establish if Britain can halt Brexit after it triggers article 50 of the Lisbon Treaty.

Lawyers will file a plenary summons to start proceedings on Friday, hoping for a hearing in March or April.

Jonathan Bartley, co-leader of the Green Party of England and Wales; Northern Irish Green Party leader Steven Agnew MLA; and the Green Party MEP for the South East of England, Keith Taylor, will join Jolyon Maugham QC, a leading British barrister, as litigants in the case.

They are seeking a referral from the High Court to the European Court of Justice of the European Union to determine whether article 50, once triggered, can be unilaterally revoked by the UK government without requiring consent from all other 27 EU member states.

Mr Bartley said the case was about giving people in the UK a legal safety net after Brexit negotiations begin and to offer clarity about whether Britain can change its mind if the negotiations go badly.

"The government claims that it can't revoke article 50. But if it is wrong, the British people would have a safety net that could allow them a real choice in a referendum on the terms of the Brexit deal. They would be able to choose between accepting Theresa May's vision of extreme Brexit or rejecting it."


Oh the Irony: The ECJ, the Court which Theresa May wants to banish from the UK Judicial landscape, may be asked to rule on whether the UK can unilaterally revoke an invocation of A.50 should negotiations go badly or the UK Government changes its mind. It is sad that the UK litigants have felt it necessary to go to an Irish Court to have such an important issue settled. They are looking for a choice which the UK Government says it does not want.

"The unique status of Northern Ireland is being ignored with our traditional parties involved in local squabbles. Any deal on the Irish Border will have massive implications across the island and it is vital that the people of Northern Ireland have a say on the final proposal," Mr Agnew said.

"For that to be meaningful, the option to remain must still be on the table. Otherwise, the UK has no leverage in article 50 negotiations, as the current assumption is that if we like the Brexit deal, we leave, and if we don't like it, we leave anyway. Only if this case is successful will the UK have a choice, which is why I believe that this case should be welcomed by all UK citizens whether they voted leave or remain."

A.50 itself is very brief, sparse and to the point. It makes no explicit provision for revoking an invocation of A.50 although it does provide for a state which has left the EU to apply to rejoin (subject to the unanimous agreement of the Council, the Parliament and the Member States).

It would have been a very simple matter to include within A.50 a provision to revoke its invocation, say after a 12 month period of negotiation, or after an initial deal had been negotiated within the two year period and then been rejected by the UK Parliament - had that been the intention of the High Contracting Parties.

So my personal view is that the ECJ is unlikely to conclude that what is simply not provided for is somehow silently implied.

Indeed if the ECJ were to find that such a unilateral revocation were possible, what would there be to prevent any number of states invoking A. 50 on a regular basis, if they were unhappy with some matter, only to revoke it once they had gotten their way? You could have multiple invocations and revocations until such time as everyone was exhausted and the EU had simply ceased to function.

On the other hand, I have little doubt that an A.50 invocation could be revoked if both the European Council and the UK came to the view that the whole thing is rather a bad idea and it was best not to pursue the matter. But that would be a political decision, not a legal right, and it is difficult to see how a proud nation like the UK could stomach the loss of face involved. Would any UK Government really be prepared to go to the Council, cap in hand, and admit that they have made a terrible mistake, and would the Council please, please, please let the UK remain a member?

And even if that rather far fetched scenario were to occur, would the European Council be minded to accede to such a request?  The EU would have been in turmoil for two years, with great uncertainty damaging economies and de-stabilizing politics. Anger at the actions of the UK in wasting everyone's time would be widespread and deep. The UK's influence within the EU would have been destroyed for a political generation at least.

So about the only way I could see such a scenario unfolding would be if Corbyn were to be replaced by a Pro-Remain leader, that leader and his party denounced whatever Brexit deal is negotiated, the Tory Government agreed to hold another referendum or a general election on its terms, and the Government was subsequently defeated. I'm not saying it couldn't happen, but it seems very, very unlikely.

The Brexit movement has developed a momentum and dynamic all of its own, and, even in the event of a lousy deal, is more likely to say F*CK the EU, we'll do this on our own, and on our own terms. We'll wait for the EU to come back to the UK looking for a trade deal...

And there the matter will rest. Until the next time. If there is a next time. If there is an EU. Or if there is a UK. Which Union will prove the more resilient?

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Thanks for this update. Interesting to take the route over Irish courts, I guess all roads leads to the ECJ.

European Tribune - Can an Article 50 invocation be revoked?

 It would have been a very simple matter to include within A.50 a provision to revoke its invocation, say after a 12 month period of negotiation, or after an initial deal had been negotiated within the two year period and then been rejected by the UK Parliament - had that been the intention of the High Contracting Parties.  

It would likewise have been simple to state that filing a A.50 invocation is irreversible, and the parties did not. Honestly, I don't think anyone thought about it when they wrote it. Maybe there is some general principles the ECJ can dig up and support a decision on.

I agree that the easier route would have been a political agreement beforehand, but that appear closed from part parties. EU refuses to talk about talks and UK ratches up the nationalism. So at this point getting the ECJ to say yay or nay is the best possible way to find out.

European Tribune - Comments - Can an Article 50 invocation be revoked?

 So about the only way I could see such a scenario unfolding would be if Corbyn were to be replaced by a Pro-Remain leader, that leader and his party denounced whatever Brexit deal is negotiated, the Tory Government agreed to hold another referendum or a general election on its terms, and the Government was subsequently defeated. I'm not saying it couldn't happen, but it seems very, very unlikely.  

I think what Labour needs is a leader that markets a vision of a possible future. End to austerity, jobs for all, care and economic safety when you get ill, working infrastructure and green energy etc. This would likely mean a refusal of the Tory deal for Brexit in favour of Remain, but to avoid re-fighting the last referendum (which, given the nationalist sentiments could likely be lost) it needs to be a referendum (or election) on Tory-Brexit in contrast with the positive alternative future presented by Labour.

So I don't think being pro-EU is necessary or even sufficient (a Blairite pro-EU could very well do worse), but what is necessary is a vision of a good society. If that is easier within the EU, then EU becomes a pragmatic choice. And I think EU membership stads a better chance as pragmatic means to an end then in a conflict of identity with nationalism vs Europeanism (or what you want to call it).

by fjallstrom on Fri Jan 27th, 2017 at 10:49:59 AM EST
So about the only way I could see such a scenario unfolding would be if Corbyn were to be replaced by a Pro-Remain leader, that leader and his party denounced whatever Brexit deal is negotiated, the Tory Government agreed to hold another referendum or a general election on its terms, and the Government was subsequently defeated. I'm not saying it couldn't happen, but it seems very, very unlikely.

Well the problem here is that there is no one like that. As I never tire to point out the only concrete criticism I ever heard of Corbyn in the run up to the referendum was that he wouldn't let his MPs "address the legitimate concerns with immigration". Good luck with staying in the Union with "British jobs for British people."

Really the only prospect I see for the UK to stay in the Union is if this case goes through. If A50 can be unilaterally cancelled then the path of least resistance becomes to run on just that once the ugliness of May's plans become visible through the fog of nationalist silliness.

by generic on Fri Jan 27th, 2017 at 12:34:24 PM EST
It occurs to me that it might be better to lobby Council (or whoever) to declare that A50 is revocable rather than rely on judges to make the decision. I'm imagining here that courts are unlikely to overturn a Council decision on the matter? (Or does EU not work that way?)
by Colman (colman at eurotrib.com) on Fri Jan 27th, 2017 at 12:50:29 PM EST
[ Parent ]
Can the Council just make up basic constitutional provisions? Because otherwise I don't see the next French president or Italian prime minister as being bound by anything they say.
by generic on Fri Jan 27th, 2017 at 01:17:43 PM EST
[ Parent ]
You do realise Le Pen is not going to be the next French president, right?
Just checking - not saying I will trust the one that will be, but it will not be Le Pen.

Earth provides enough to satisfy every man's need, but not every man's greed. Gandhi
by Cyrille (cyrillev domain yahoo.fr) on Fri Jan 27th, 2017 at 02:43:07 PM EST
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Do you believe even Hamon would feel bound by Hollande's promises? France can not make plausible commitments about the A50 process and we can't very well amend the Lisbon treaty in a few months time.
by generic on Fri Jan 27th, 2017 at 02:54:14 PM EST
[ Parent ]
I believe that Hamon would feel bound by the rule of law unlike, say, Trump, or the UK Tories.

So anything that is just an informal opinion would indeed be fair play, but a council decision following an official request would not be entirely ignored.

Earth provides enough to satisfy every man's need, but not every man's greed. Gandhi

by Cyrille (cyrillev domain yahoo.fr) on Mon Jan 30th, 2017 at 09:15:34 AM EST
[ Parent ]
Should Council decide how they're going to interpret matters constitutional provisions are silent on? Probably?
by Colman (colman at eurotrib.com) on Fri Jan 27th, 2017 at 03:55:51 PM EST
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Wouldn't that be those dreaded pre negotiations? And would that have any legal weight?
by generic on Fri Jan 27th, 2017 at 04:39:55 PM EST
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In my experience, a major difference between common law and civil law systems is that a common law system generally says, "You can unless the law says you can't," while a civil law system generally says, "You can't unless the law says you can" (See, e.g., the comic opera concerning coffee grounds in the garden.).  ECJ is a civil law court.
by rifek on Fri Jan 27th, 2017 at 05:01:13 PM EST
The Brexit movement has developed a momentum and dynamic all of its own, and, even in the event of a lousy deal, is more likely to say F*CK the EU, we'll do this on our own, and on our own terms.

Hasn't Theresa May already said as much?

You might find me At The Edge Of Time.

by Luis de Sousa (luis[dot]a[dot]de[dot]sousa[at]gmail[dot]com) on Tue Jan 31st, 2017 at 12:55:29 PM EST
More or less, and she is lining up great allies like Trump and Erdogan to that end.   However at this stage I see this as more of an opening negotiating ploy in the hope of provoking a more accommodating EU response. It will take some time to sink in that this is, in fact, the most like outcome.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Jan 31st, 2017 at 04:31:11 PM EST
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