Theresa May moves to trigger Article 50 without knowing whether it's revocable

LONDON — Prime Minister Theresa May told the House of Commons today that the Brexit bill will be presented to the Queen in the next few days and, once signed, her government will formally trigger Article 50, the legal process through which Britain will leave the EU.

But what if we change our minds?

Article 50 starts a two-year deadline after which Britain will no longer be part of the EU, regardless of whether the UK has reached a trade deal with the Europe. It begs the question: Is Article 50 revocable?

Can May change her mind and take back the request to leave? Or is Article 50 an irrevocable act, ejecting Britain from Europe no matter what?

The law is unclear, but there have been a few clues from legal authorities as to whether Article 50 reversible.

The question is important because of two major issues that could derail May’s attempt to get the best deal for Britain as it leaves the EU:

  1. The impending request from the Scottish government to hold another independence referendum that may take Scotland out of the UK;
  2. The ability of the UK to secure a “transitional” deal with the EU to temporarily cover the country’s EU trade relations while a full deal is being negotiated. A full UK-EU trade deal will likely take much longer than two years to negotiate.

If the EU is unwilling to give the UK a transitional deal it would be a huge advantage for May to be able to withdraw her Article 50 request and then, presumably, re-trigger it. It would buy her another two years of negotiating time (and show Europe that the UK can’t be ejected from the EU by default). The ability to unilaterally revoke, or re-trigger, Article 50 would completely change the balance of power in the negotiations, largely in Britain’s favour. Without it, Britain is arguing from a fantastically weak position which prevents it from rejecting a bad deal.

Here is what the legal authorities have most recently said:

THOSE SAYING ARTICLE 50 IS IRREVOCABLE:

Justice Secretary Liz Truss has said that “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 that “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.” However, that 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:

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.”

EU 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 are 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 that “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.”

That last scenario — a change of government — isn’t entirely implausible. Some Conservative MPs are urging May to hold a snap general election in order to wipe out the Labour Party as an opposition force. While Labour does not look likely to win an election anytime soon stranger things have happened (two Scottish independence referendums in less than three years, for instance).

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