With the predicted failure of the government to get its Brexit deal through the Commons, the Labour leadership is said to be aiming to initiate a general election via a no confidence vote with plan B, a second People’s Vote incorporating a no-Brexit option. Let us suppose that this time the choice is remain.
Or, indulging in a bit of make-believe, suppose after the debate a Commons majority writes off Brexit altogether as a car crash waiting to happen. In reaching that conclusion, they harness the grave breaches of electoral law and information regulations committed by Leave campaigners as wiping out the legitimacy of the wafer-thin Leave vote. Perhaps it even dawns on some of our less numerate legislators—finally—that to describe the Leave vote by 37% of the registered electorate as expressing the will of the people is an arithmetic absurdity, a mathematical monstrosity.
Since well before the prime minister activated Art 50 of the Treaty on European Union, the government has been posing the threat that if the UK fails to reach and ratify a satisfactory withdrawal deal there will be no legal option open to us but to quit the EU without a deal. Their stance has been that repeal of the EU Withdrawal Act 2018 (which fixes ‘exit day’ as 29 March 2019) will make little difference. Under the terms of Art 50, they insist, we are on a one-way ticket out whether we like it or not: upon activation we were deemed liable, and became doomed, to irrevocable self-expulsion.
That threat is entirely hollow, betraying a willfully blind interpretation of the terms of Art 50. It is little surprise that Manuel Campos Sánchez-Bordona, an Advocate General to the Court of Justice of the European Union (CJEU), has delivered an independent opinion that Art 50 is unilaterally reversible. The opinion was prepared for the court in relation to a case brought in Scotland by a cross-party group of six Scottish Politicians in association with the Good Law Project directed by Jolyon Maugham QC and referred to the CJEU by the Scottish Court of Session (see eg Evening Standard, online, and see Joe Murphy, Nicholas Cecil and Kate Proctor, ‘Europe to Britain: you can stop Brexit’, Evening Standard, 4 December 2018).
The one-way ticket argument derives from Art 50(3): ‘The Treaties [by which the UK originally joined the EU] shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.’
The government contends that it is the imperative ‘shall’ which has set the timebomb ticking and blocks any possibility of abandoning our exit from membership even if we wanted to remain. The only leeway, it is claimed, is postponement subject to the unanimous consent of the EU27 (an option available for further negotiations or a second referendum).
That interpretation is manifestly incoherent. It betrays a woefully inadequate grasp of the nature of language and logic. To understand why, let us look for a moment at Art 50(1) and (2). Article 50(1) decrees: ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.’ Article 50(2) states ‘A Member State which decides to withdraw shall notify the European Council of its intention…’ It is the interplay between the decision and notification of the decision which is all important here.
According to standard dictionaries, to ‘decide’ is to determine upon a certain course; to settle, resolve, make up one’s mind. Intend is to ‘fix the mind upon a specific design.’ Clearly a decision is not the projected act itself, merely the formation of an intention to execute it. So it is implicit in the nature of any ‘decision’ that decision-makers may change their minds. I decide to marry ‘Duckface’ but at the altar second thoughts prevail. Nowadays she can’t even sue me for breach of promise.
So by definition an Art 50(1) decision can be revoked. The Art 50(2) notification enjoys no independent legal standing in its own right but is merely a process occasioned by the decision. If the decision is revoked, the notification lapses. The notification cannot render the decision a hostage to fortune; the tail can't wag the dog. Otherwise the decision would itself constitute the act of leaving, which it clearly does not. Article 50(3) simply means that the member state will automatically leave two years after notification provided the decision which it conveyed is not in the meantime rescinded. To any objection against the admissibility of importing the words in emphasis, it may be rejoined that there is available in the context of Brexit law a rather more controversial example of ‘imaginatively’ reading words into a statutory measure in order to give effect to its presumed purpose. In the action for judicial review brought against the Brexit Secretary by Elizabeth Webster and others (R (on the application of Ms Elizabeth Webster) v Secretary of State for Exiting The European Union, High Court of Justice, Administrative Court, CO/5929/2017) the Divisional Court held that the words ‘The Prime Minister may notify, under Article 50(2) of the [TEU], the [UK]’s intention to withdraw from the [EU]’ in section 1(1) of the EU (Notification of Withdrawal) Act 2017, were to be treated as if ‘Article 50(2)’ read ‘Article 50(1).’ The effect was to determine that it was the prime minister who had made the withdrawal decision (and not the people in the referendum or Parliament).
When in the course of his submissions to the Supreme Court in the case brought against the Brexit Secretary by Gina Miller, Lord Pannick QC (on behalf of the claimants and with the opportunist assent of the government) likened an Art 50(2) notice to a bullet which once fired could not be recalled by the marksman, he was in thrall to the metaphor ‘trigger,’ taking it too literally (R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant)  UKSC 5). But a truer metaphor is electric light. Turn on the current: the decision. The current flows and the bulb glows: the notification. Turn off the current, the light goes out. A decision to act is by definition inherently reversible.
If Parliament repeals the EU Withdrawal Act and enacts revocation of the Art 50 decision before March 29 the notification will simply lapse. There will be no forced Brexit; no involuntary self-expulsion. The EU would hardly argue the contrary!
But if, as seems more likely, Parliament merely decides to order another referendum, as matters stand it is unlikely this could be rushed through before 29 March 2019, in which case the UK would require an Art 50(3) extension. This would require unanimous agreement of the EU27. It might be argued that to circumvent this difficulty the prime minister could neatly revoke her EU (Notification of Withdrawal) Act 2017 decision and Parliament could then hold a fresh referendum. If the new vote favoured Leave (which somehow seems unlikely now), the prime minister could activate Art 50 again. However, although this is theoretically and legally possible, it seems unlikely (as Richard Bird has pointed out in a personal communication) that the prime minister (Theresa May or some substitute) would ever dare to revoke prior to a referendum. There would need to be an extension and the UK might be hostage to members states with an agenda; for example, Spain, which might put up obstacles in order to extract concessions over Gibraltar.
6 December 2018: After this article went online it was pointed out to the author by Ian Karsten in a personal communication that both the French and German versions of Art 50(3) use the present tense instead of the imperative (respectively, Les traités cessent d'être applicables and Die Verträge finden . . . keine Anwendung mehr -- lit, ‘The treaties find . . . no applicability’). The descriptive usage rather than the prescriptive is consonant with the argument that notification cannot override revocation of the original decision about which the notification was given, so as to preserve the decision ‘in aspic,’ so to speak. In another personal message, Mark Adler, an expert in the use of languge in law, has pointed out that ‘shall’ is often used in the non-imperative sense, even in formal legal documents.
David Wolchover is a barrister at Ridgeway Chambers and Article6Law, 2 King’s Bench Walk.
David Wolchover explains exactly why Article 50 can be unilaterally rescinded