Don’t lose heart, Article 50 can be withdrawn

by Luke Lythgoe | 12.01.2018

We can change our minds and stay in the EU if we wish, three top lawyers have argued convincingly. Theresa May, who insists Brexit will happen come what may, has refused to share her own advice on the issue – suggesting it reaches the same happy conclusion.

A legal opinion from three QCs argues that Article 50 was a notification of the UK’s “intention” to withdraw from the EU. In common language, an intention can always change, and there’s nothing in the wording of Article 50 that suggests “intention” has a different meaning here. As a result, we can change our minds and don’t need the other 27 countries’ permission to do so either.

Article 50 also explicitly says that if a country wishes to rejoin after it has left the EU, it must re-apply as any new state would. It refers to the position only after leaving, not after notifying the EU of our intention to quit, suggesting the UK could keep its status quo as a member state if it chose to.

May has been provided with legal advice on the matter but refused to disclose it despite requests by an MP and others. As if that’s not enough, John Kerr, one of the authors of Article 50, has argued powerfully that we can change our minds if we wish. What’s more, Brexit minister Martin Callanan was forced last November to apologise to the House of Lords after wrongly claiming that the UK Supreme Court had confirmed Article 50 was irreversible.

The government is trying to pretend Brexit is inevitable so the people don’t question the wisdom of charging ahead with such a destructive policy. But the fact that the prime minister is going to such lengths to pull the wool over voters’ eyes should give pro-Europeans heart. It’s not too late to change our minds.

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Edited by Hugo Dixon

7 Responses to “Don’t lose heart, Article 50 can be withdrawn”

  • reversibility has never been in any doubt . Unfortunately the Millar case was fought on the basis that it was irreversible ; Pannick (representing Millar) said the transmission of the letter was as irreversible as firing a bullet from a gun. In the light of the confusion caused by this position and the government rolling over anyway , Millar was more trouble than it was worth – for remainers

  • Nobody ever said that Article 50 cannot be reversed. However, there are only two arguments (Article 50 itself and international law) that can be used for the ECJ to rule that Brexit can be revoked – and neither will work:

    Article 50:

    Two issues in the text of Article 50 are relevant to revoking Brexit: the legal relevance of ‘intention’ (as mentioned in this article) and the relationship between ‘intention’ in Article 50 (2) and ‘withdrawal’ from the EU in Article 50(5).

    Various claims have been made about the legal significance of ‘intention’ to the effect that it has no legal status or that the law recognises that intention can be overturned as it is not a binding commitment.

    However, the role and relevance of intention in the law is contingent, and EU law does not have any general position on the role and relevance of ‘intention’. In fact, there is no provision of EU law, nor do proponents offer any specific authority in support, on the status of an ‘intention’ under EU law.

    And, even were ‘intention’ to have an autonomous meaning under EU law, there are good reasons to believe that the legally relevant issue under Article 50 is not ‘intention’ but ‘notification’, and only a formal and clear act of notification can provide the requisite certainty and clarity which the law is called upon to provide in the withdrawal procedure – it is the UK’s notification which started the clock ticking on the two year time period under Article 50(3), not the UK’s ‘intention’.

    Also, the arguments based on the difference between Article 50(2) and 50(5) do not change this position given that 50(2) only speaks of ‘intention’ to withdraw, and 50(5) only speaks on the procedures for readmission after a member state has withdrawn.

    In essence, Article 50 envisages that there is a difference between an ‘intention’ to withdraw and actual ‘withdrawal’ such that the former is revocable but that latter is not. Or, put another way, if ‘notification’ and ‘withdrawal’ were synonymous under Article 50, then the procedure for reapplying under Article 50(5) would explicitly refer also to the ‘notification’.

    That said, the problem here is that there is no definition of ‘withdrawal’ under Article 50(5), and the legal effect of leaving the EU is that EU law ceases to apply to the UK, subject to whatever agreement is put in place between the UK and the EU in its lieu), as covered by Article 50(3), which is the closest Article 50 comes to a definition of withdrawal, occurs two years from notification unless otherwise agreed by the UK and the EU.

    But there is nothing to suggest that Article 50(3) envisages that this ‘notification’ could be contingent on some other intervening act such as a revocation of such ‘notification’.

    Therefore, any evidence submitted on the text of Article 50 as to whether the UK’s notification can be revoked is at best inconclusive, at worst, points in favour of a no-revocation position.

    International law:

    As the Treaties are agreements between sovereign states, the sovereignty of each EU member state includes the right to notify to withdraw but also the right to revoke such notification at any stage prior to actual withdrawal.

    As such, the right to revoke is essentially read into the sovereignty of EU Member States, and the sovereignty of the EU’s member states – and the agency, rights and duties that accompany it – are recognised and upheld by International law.

    However the problem here is that international law is not directly relevant to the question. It is uncontroversial that international law recognises the general right to accede to and withdraw from international treaties as a function of the sovereignty of states.

    And international law also recognises that where states have agreed to regulate matters in a particular way, particularly in the terms of an international treaty, the treaty provisions will be applied over general international law.

    Therefore, Article 50 is a ‘lex specialis’, which would be enforced in any dispute about the logistics of withdrawal over the provisions of general international law and in particular the general rights and duties of sovereign states. Thus, the general point about international law is subject to the Article 50 procedure which simply begs the question – does Article 50 allow for a revocation of notification of withdrawal? And the answer is NO!

    Another line is recourse to Article 68 of the Vienna Convention on the Law of Treaties, the provisions of which clearly and unambiguously state that ‘a notification [for withdrawal] may be revoked at any time before it takes effect’.

    However, this is not relevant to Article 50 because, for one thing, it stipulates a slightly different procedure which includes the possibility of other states objecting to the withdrawal. But even if it was, the European Union is not bound by it, and not all EU member states are signatories to the convention (Romania, for example, is not a signatory) but, and more significantly, the EU itself is not a signatory.

    As such, it does not bind EU law and can therefore have no direct bearing on the revocation question under Article 50. Therefore, the legal question invariably turns to the interpretation of Article 50 itself.

    None of this, of course discounts the possibility that the ECJ may draw on international law in answering this question but international law would only be able to treat the issue as entirely a matter of EU law, and Article 50 discounts the ECJ ruling in favour of revocation – as I have stated above.

    So in essence, the ECJ cannot rule in favour of revoking Brexit. But if they do, it would be interesting to see on what grounds they make such a ruling!

  • the reversibility of article 50, just like most of the Brexit arguments, is very much an anglo-british melodrama.

    instead of asking yourselves (british QC) if you can disrupt European politics and economies through Brexit, then seemingly change your mind, and force everybody to go along, why don’t you invite active or past European judges at the ECJ, Commission officials at the legal department, or even better, ask straightworldly to European Member States presidents and ministers whether the UK can rescind the article 50 before March 2019 and under what conditions ?

    to date, talking about yourselves about an event that will be decided by others (European Council, ECJ) is pretty much fruitless, not mentionning singularly arrogant.
    and thus far, I haven’t heard anything coming from European officials (member states and Commission), that says article 50 can be stopped. Only that the UK can decide to stay very close to the EU if it chooses to keep following the Acquis (ie: the Norway option).

    any other sweet music was heard BEFORE article 50 was started.

  • Jean Claude Piris, former head of the EU Council’s legal service: “Art 50 is based on the principle that withdrawing from the EU is a unilateral decision. Nobody can force a state to leave”.

    An analysis in March 2017 by the European Parliament’s legal service concluded that withdrawal is legally possible because “Any other situation would amount to an expulsion from the EU, which would not have been the purpose of the drafters of article 50.”

    A 14 page research paper by the Bundestag’s EU Affairs Dpt demonstrated just how far legal opinion is split, but some of those involved concluded that unilateral revocation is possible. Donald Tusk has said that the UK can withdraw its art 50 notice.

    Only the European Court of Justice can provide a definitive judgment on this matter. That is why a cross party group of Scottish politicians is seeking a ruling from the ECJ.

    What your comment doesn’t take on board is that the Remainers in the UK are every bit as passionate in their support of the EU, as the Leavers are against it. And this political divide is echoed in other EU member countries. In this context, we are not discussing British arrogance, but the national interest and the overriding importance of the European project.

    The UK government is making an almighty horlicks of Brexit through the imposition of unnecessarily destructive red lines. It cannot reconcile its determination to avoid a hard border in Ireland with its declaration that the UK will leave the single market and the customs union. 2018 is the year when the public will wake up to the fact that the UK is pursuing the worst possible Brexit, and that the government simply isn’t fit for purpose.

    In fact, the EU and the UK would probably both be best suited to the UK becoming an EEA member, and gaining access to the single market via that route. This would result in the EU being rid of its turbulent priest, and the UK escaping from further EU integration and ever closer union.

  • International law, specifically the Law of Treaties as codified in the Vienna Convention on the Law of Treaties, does not state that a notification of withdrawal is irreversible; much depends on the wording of a particular treaty’s provision on withdrawal. An examination of Article 50 suggests that there is no legal impediment to a notification being withdrawn.

  • As I understand it, the Supreme Court acted on the presumption that it was irreversible – a position agreed by both parties. This was to give a clear framework in which to make the decision regarding the constitutional aspects of triggering it. No decision was ever made as to whether this was actually the case, nor could it have been as it was not within the competence of a British court to decide that question.