Can we change our mind after triggering Article 50?

by Hugo Dixon | 13.12.2016

One of the most important questions in the Brexit process is whether we can change our mind after Theresa May triggers Article 50. A case being filed in the Irish High Court could provide the answer.

If we can change our mind, parliament could refuse to ratify the exit treaty the prime minister negotiates with our EU partners. It might do this if it concludes the deal will be destructive – as it probably will be.

Parliament might then call for a new referendum to determine whether the electorate still wants to leave the EU or would prefer to stay a member. Given that the European Commission plans to conclude negotiations several months before Article 50’s two-year period ends, we would have time to do all this.

But it would be pointless if we couldn’t change our mind.

Article 50 itself is silent on the question of whether we can change our mind. The government has said we can’t in its Supreme Court appeal over the High Court’s decision that it doesn’t have the authority to start the divorce process without asking parliament’s approval.

But many lawyers and experts – including John Kerr, the British diplomat who wrote Article 50 – say we can change our mind. Donald Tusk, the European Council president, has said something similar. Insofar as there is a consensus, it is probably that the matter would be determined by political considerations. If the other big European powers wanted us to stay, we could reverse course. But that, in turn, would probably be determined by whether they thought we had really changed our mind or would continue to flip-flop.

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    The legal action in the Irish High Court seeks to provide certainty about this murky question. It has been instigated by Jolyon Maugham, a UK QC. The aim is to get the Irish High Court to refer the matter to the European Court of Justice, which will be able to give a definitive view. If everything goes according to plan, there could be an answer by the summer of next year.

    It may appear bizarre that this case would be heard first in Ireland rather than the UK. But there are sound, albeit complex, reasons for doing so. For one, it allows Maugham to kick off the process now rather than waiting for May to announce that she is triggering Article 50.

    It’s possible that other lawyers will find a way to bring a similar action in the UK courts to clarify whether we can revoke Article 50 once we’ve invoked it. But for now, Maugham’s case is the only game in town.

    Edited by Michael Prest

    3 Responses to “Can we change our mind after triggering Article 50?”

    • I hear lawyers saying that anything that is not prohibited is in principle to be allowed, and that this reflects a fundamental paradigm of our legal cultures on both sides of the channel.

    • As you say, this is the only game in town, if we can now assume the UK Supreme Court won’t put this question to the CJEU (there are other Brexit suits pending in the UK which may be brought to it, one of which I understand asks the EU/EEA question. There is a massive public interest in getting the answer from CJEU asap, though this can’t now be achieved within Theresa May’s self-imposed (and perhaps vulnerable) notification deadline. Jolyon Maugham will have earned immense gratitude if his ingenuity has found a way to crack this open. Raising £70K overnight suggests that others have confidence in the approach. One can’t help wondering if the EU itself would not be willing in one way or another to help broker a referral to the CJEU. Many in the Union would probably prefer the UK to have the option of an assured u-turn route. But regarding the proposed Irish route for the case: if it works, it works; I am no lawyer; the claim to be brought in Dublin that “the Irish Government has, we say, colluded in a breach of the EU Treaties by wrongly excluding the UK from meetings of the EU Council” is apparently just a device to create a situation where the Irish court is given a reason to activate CJEU on the u-turn question. But how does the u-turn question bear on this claim against Ireland? Is there even enough merit in the claim to get it to that point? Why would the 27 not be entitled to talk among themselves about Brexit? One hopes this has been carefully thought through. If the Dublin Court throws the case out or refuses to refer, vital time may have been lost.

    • I can see the legal relevance of the question whether the UK could change its mind after triggering Article 50. But in practical terms another question also arises in the light of the elections due on the continent in 2017 – and that is whether the EU could change its legalistic rigid intransigence to change with the changing times, and thus help to justify a second referendum in the UK. Already, some are saying it should.