LONDON — Way back in April, when the Conservatives were 20 points ahead of Labour in the polls, we asked this seemingly crazy question:
“Imagine, by some miracle, that Theresa May and the Conservatives lost their majority in the June 8 general election. Could a new government reverse its Article 50 request and undo Brexit?”
Well, here we are!
While it is not likely that May will seek to undo Brexit, it is certainly the case that her government is in no shape to start the Article 50 negotiations. The EU is already trolling May about this. European Commission President Jean-Claude Juncker told Sky News today, “as far as the Commission is concerned we can open negotiations tomorrow morning at half past nine.”
Officially, the negotiations begin on June 19.
There is zero chance of Prime Minister May’s team being fully prepared to start those talks. May is currently reshuffling her cabinet. We don’t know who will be in charge of what on June 19. And even when we do, those people have a lot of catching up to do before they get on the plane to Brussels.
Article 50, triggered in March, started a two-year deadline ending in March 2019, after which Britain will no longer be part of the EU regardless of whether the UK has reached a trade deal with the rest of Europe.
It is difficult to see May’s minority government surviving that long. If it collapses, Labour leader Jeremy Corbyn may try to form a coalition with him as a new prime minister.
That, too, would hurt the UK’s position in the Article 50 negotiations — the Corbyn team would be starting from scratch, facing EU negotiators who have been preparing since June 2016. And Corbyn favours a soft Brexit, retaining many of Britain’s rights and duties with the EU.
So the question presents itself again. Can the UK reverse or revoke its trigger of Article 50, either permanently or temporarily, with the aim of either putting the talks on hold until Britain has its act together or even doing an epic historic U-turn? Or is Article 50 an irrevocable act, ejecting Britain from Europe no matter what?
The short answer is yes, Article 50 can be revoked …
The law is unclear, but there have been a few clues from legal authorities as to whether Article 50 reversible.
Most recently, a leaked European Parliament draft resolution has said that the UK will be able to revoke Article 50 before it expires if the rest of the EU agrees.
That sounds tough — the UK would need 27 other countries to vote to let us back in. But in the scenario of a new prime minister who favours Remain or a soft Brexit into the EEA, it would suit all parties just fine.
But the issue has not been settled in the UK courts or the European Court of Justice. Here is what various legal authorities have most recently said:
THOSE SAYING ARTICLE 50 IS IRREVOCABLE:
Justice Secretary Liz Truss has said, “my understanding is that it is irrevocable.” She made the claim on “The Andrew Marr Show.” The official position of the government is that it would never undo its decision.
The UK Supreme Court, in its decision requiring the House of Commons to vote on a bill triggering Article 50, said, “In these proceedings, it is common ground that notice under article 50(2) (which we shall call ‘Notice’) cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn.” That, however, was merely a procedural assumption in the case. The court did not rule on the merits of the position. As a matter of law it remains undecided.
THOSE SAYING ARTICLE 50 IS REVOCABLE:
The EU-27 Article 50 negotiators say: “… a revocation needs to be subject to conditions set by all EU-27 so they cannot be used as a procedural device or abused in an attempt to improve the actual terms of the United Kingdom’s membership”.
Lord Kerr, the author of Article 50, says “you can change your mind while the process is going on.” He told the BBC: “During that [two-year] period, if a country were to decide actually we don’t want to leave after all, everybody would be very cross about it being a waste of time … They might try to extract a political price but legally they couldn’t insist that you leave.”
Speaking in the House of Lords this month, Kerr added: “When the government says as a matter of policy that they will not withdraw the notification … they implicitly confirm that in law they could withdraw it and they could. It is revocable.”
European Council President Donald Tusk suggested last year that Britain could change its mind. “In my opinion, the only real alternative to a ‘hard Brexit’ is ‘no Brexit'” he said last October, adding that once exit discussions were over Britain must “assess the outcome of the negotiations and determine if Brexit is really in their interest.”
The House of Lords was advised by its own legal counsel: “It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of government … There is nothing in Article 50 formally to prevent a member state from reversing its decision.”
All of this sounds wildly implausible right now. But it’s worth bearing in mind that British politics currently consists of nothing but surprises. And four of the previously “unthinkable” conditions for reversing Article 50 have already happened:
- The government has called a new election;
- the government has lost that election;
- the Scottish parliament has voted for a new independence referendum;
- and the Northern Irish MPs from the Democratic Unionist Party are entering the government as part of a coalition — and they are highly incentivised to soften Brexit in order to keep their border with Ireland open and free.
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