Can an Article 50 notification be revoked?
UK Human Rights Blog
David Allen Green-Oct 18 2016 11:59
Pro-EU supporters outside the High Court in London, which has been hearing the Article 50 case © Getty Images
When the UK makes a notification under Article 50 that it intends to withdraw from the EU there is the legal question of whether that notification can be revoked unilaterally.
Nobody knows the answer.
If it is revocable then the UK and EU will not be bound to go through with the exercise if conditions or preferences change: the UK can put the revolver down.
But if it is irrevocable then the UK will be out in two years or so, even if no exit deal has been agreed: once the revolver is fired the bullet cannot be stopped.
The one place you will not find any explicit answer is Article 50. The provision is silent on whether revocation is possible and the exit process halted. This means no one can be certain what the legal position is, and that includes those pundits with confident opinions either way. Nobody knows, especially those who claim to know.
That Article 50 is silent is not surprising, since its authors never intended it to be used and so no great thought went into its content. It was there only for a symbolic purpose, to reassure the Eurosceptics and nationalists that no member state was bound to be a member. As this blog has described, Article 50 was intended to be an ornament not an instrument. This is what happens when diplomats are allowed to draft legal instruments.
But now the ornament has to be used as an instrument, with all its blemishes and omissions. So how can one make legal sense of the provision? What would a court of competent jurisdiction say if it were invited to rule on whether a notification under Article 50 can be revoked?
A court could look at the provision as a whole and decide that the process set out makes no sense if there can be casual starts and stops. The two-year deadline would have no meaning if the clock could keep being reset to zero. If the intention of the drafters was to have a flexible approach to notification then it would not have been so firm on the two-year expiry and be silent on revocation. Accordingly, adopting this narrow approach, the provision was intended to concentrate minds and there is no scope for revocation.
This view has been adopted by both sides in the current litigation before the High Court in London. The claimants, who are seeking a ruling that parliament has to decide on Article 50 or authorise the notification, have every interest in the decision being treated as irrevocable. Their strongest legal arguments (in my view) are about the rights that will be extinguished as a natural and direct consequence of the notification. But if it can be revoked, then the arguments fall away. The government, too, has a political interest in maintaining that notification is irrevocable, otherwise Brexit may not mean Brexit.
This shared position means the courts may not need to determine the question of revocation, as it is not in contention between the parties.
But there are other views. Many academics contend that under the usual rules of international law, such notifications would normally be revocable (one excellent post setting out this view is here). This is the view of the former director-general of the Council of the EU’s Legal Service. And, significantly, Donald Tusk, president of the European Council, raised the possibility of notification being (legally, unilaterally) revocable in his important speech last week:
“We will conduct the negotiations in good faith, defend the interests of the EU 27, minimise the costs and seek the best possible deal for all. But as I have said before, I am afraid that no such outcome exists that will benefit either side. Of course it is and can only be for the UK to assess the outcome of the negotiations and determine if Brexit is really in their interest.”
Such an “assessment” would, of course, only make sense if the UK had the right at law to step back unilaterally. And when Mr Tusk was asked directly whether Article 50 notification was revocable, he said “formally, legally, of course, yes“. He was not just expressing a political view, he was saying it was the legal position too.
This question matters, as any legal ability of the UK unilaterally to revoke the Article 50 notification is perhaps more important than the unilateral right to invoke the process.
At a stroke it transforms the negotiating position of the parties: the UK is no longer the prisoner of a process but can walk away from a potentially bad bargain. Similarly, the negotiating position of the EU could be affected: if there is flexibility about whether the UK is bound to depart once the process starts, then this may determine the extent of any flexibility about the ultimate terms on offer.
There is no doubt that as a matter of multilateral politics, rather than law, the UK could revoke the notification if all the other member states agreed (although no doubt there would be some Brexiters who would then litigate). Many things are possible in the EU by agreement of the members. But when there is no agreement, the legal position matters, and here it is uncertain.
We have a curious situation: Article 50 says nothing expressly about revocation; those with confident opinions about the legal position have no express term on which to base their opinions; both the UK government and those who are challenging it in court say that the notification is irrevocable; and academics and the president of the European Council say that, at law (as well as politically), the notification is unilaterally revocable.
The legal question of unilateral revocation is a crucially important one, as the answer may determine the manner in which any Brexit will come about — or indeed whether it comes about. At stake is the very course and outcome of the Brexit process.
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