Wednesday, 5 December, 2018
Can the UK revoke Article 50 and stay in EU on same terms as now? Can an independent state withdraw from a treaty it doesn't like?
Article 50 revocation
There are differing opinions as to whether or not the UK's Article 50 notification on withdrawal from the EU can itself be withdrawn by the UK government. However, EU leaders have indicated that they would be open to a change of mind from the UK. On 27 November, the Court of Justice of the EU (CJEU) heard a case brought by a cross-party group of UK politicians on whether or not Article 50 can be revoked. Lawyers for both the European Commission and the Council of the EU argued against a Member State being able to revoke Article 50 unilaterally. The Court said it would issue an opinion and decision on this very quickly.
Jean-Claude Piris, former legal counsel to the European Council, has said that if the UK were to withdraw the Article 50 notification: "The current situation would prevail. The UK would remain an EU member State, with its current opt outs."
The Article 50 process
The Article 50 process is described in some detail in Commons Briefing Paper 7551, Brexit: how does the Article 50 process work? 16 January 2017.
Article 50 TEU states in para. 3:
The Treaties 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.
Britain's exit from the EU will therefore take effect either when a withdrawal agreement enters into force, or two years after notifying the European Council of the intention to withdraw (i.e. on 29 March 2019, two years to the day after the Prime Minister triggered Article 50), unless the European Council decides to extend this period.
Whether or not the Article 50 notification can be withdrawn by the UK government, thus ending the withdrawal negotiations and enabling the UK to remain in the EU, has however been disputed.
Is Article 50 reversible?
There is a debate as to whether the UK could unilaterally revoke Article 50. There is no provision in Article 50 itself for withdrawing the notification to withdraw, but many commentators and legal experts believe it is revocable.
The EU Treaties are silent on this issue, but the Miller case at the Supreme Court proceeded on the assumption that notification under Article 50 would be irreversible.[1]
There have however been reports that the UK Government has received legal advice stating that Article 50 can be withdrawn. The Government has not confirmed that it has received such advice, and it maintains that Article 50 will not be revoked as a matter of policy principle.
Former UK diplomat Lord Kerr, who was responsible for drafting Article 50 as Secretary-General to the European Convention in 2002-03, said last year in a speech to the Open Britain group that Article 50 is revocable.
Jean-Claude Piris, former legal counsel to the European Council, supports this interpretation. In an article in March 2018, he said:
Legally, on 29th March 2017, Britain decided to "notify the European Council of its intention" to leave the EU. Legally, nothing prevents Britain, in accordance with its constitutional requirements, from changing its intention and withdrawing Article 50. The current situation would prevail. The UK would remain an EU member State, with its current opt outs.
Many of the arguments for and against the reversibility of Article 50 are described in a European Parliament Constitutional Affairs Committee report, The (ir-)revocability of the withdrawal notification under Article 50 TEU , Ioannis Papageorgious, January 2018. In an interesting follow-up EU Law Analysis blog, Can an Article 50 notice of withdrawal from the EU be unilaterally revoked? 16 January 2018, Professor Stephen Weatherill argued that the Article 50 notice cannot be unilaterally revoked, while Professor Steve Peers argued to the contrary.
Three QCs, Marie Demetriou, Jessica Simor and Tim Ward, have written a joint legal opinion , which they have sent to the Prime Minister, in which they conclude that Article 50 can be withdrawn before 29 March 2019 without the need to seek the agreement of the other EU Member States, and that if this happens the UK would retain its privileges.
The joint legal opinion notes that the wording in Article 50 refers to a decision to notify an 'intention' to withdraw. The QCs argue that an 'intention' is not a binding commitment; it can be changed or withdrawn.
There are no judicial precedents to guide CJEU interpretation of Article 50 TEU. There could be a need for recourse to the Vienna Convention on the Law of Treaties (VCLT ). Articles 65-68 of the VCLT concern the procedure for the withdrawal of a party from a treaty.
The legal opinion issued by Demetriou, Simor and Ward cites Article 68 of VCLT in support of their argument. This reads: "A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect."
Ultimately, the revocability question would be for the Court of Justice of the EU (CJEU) to decide.[2]
European Court hearing on Article 50 revocability
The Court of Justice of the EU (CJEU) heard a case on whether Article 50 can be revoked on 27 November 2018. The case has been brought by a cross-party group of MPs and MSPs in Scotland (from the Labour party, SNP, Liberal Democrats and Scottish Greens), backed by the Good Law Project . Their original application for judicial review into whether the UK can unilaterally revoke Article 50 was granted by the Court of Session in Edinburgh in March 2018. The Court initially decided on 8 June not to refer the matter to the CJEU, given that it was a hypothetical question as the Government does not intend to withdraw the A50 notice. However, following an appeal, the Inner House of the Court of Session ruled that the question should be referred to the CJEU. The UK Government sought to appeal against the ruling, but its request for an appeal was rejected by the Supreme Court on 20 November.
The case was heard by the full court of judges at the CJEU on 27 November. Lawyers for the petitioners (the cross-party group bringing the case) argued that requiring agreement of all Member States in order to withdraw an Article 50 notice would "ride roughshod" over EU principles, as it would mean a Member State could be forced out of the EU against its will if it changed its mind after invoking Article 50. The UK Government argued that the case should not be permissible as it was a hypothetical question (as it did not intend to revoke Article 50) and any ruling would be used to shape domestic political debate in the UK.
Both the European Commission and the Council of the EU also argued against unilateral revocability of Article 50. The Council said allowing unilateral revocability could lead to Member States continuing to invoke and revoke Article 50 in an attempt to win concessions from the EU (although termination of the Article 50 process should not be prevented if all Member States agree). The Commission also raised the possibility of the process being abused if Member States could invoke Article 50 and then revoke unilaterally. It argued that as the extension of Article 50 required unanimity in the European Council, so should revocation.
The Court said it would issue an opinion and decision on this very quickly. The Advocate General of the CJEU will issue an opinion on 4 December 2018. Such opinions are not binding on the Court and it is possible the Court could then make a decision that is contrary to the opinion (although decisions are normally in agreement with the opinion). The Court decision could also set out a procedure as to how Article 50 can be revoked and how this is approved by the European Council.
Is primary legislation required to authorise a revocation?
Even if an Article 50 notification can, in principle, be revoked unilaterally by the United Kingdom, there remains the question of what the domestic constitutional requirements would be for it to do so.
Robert Craig of LSE and Durham Law Schools, has argued, for instance, that fresh primary legislation would be required to authorise any Government minister to purport to "revoke" a notification under Article 50.[3] He argues that the wording of the EU (Notification of Withdrawal) Act 2017 affirms expressly Parliament's intent that a notification should be given, and that revocation without further Parliamentary authorisation would frustrate the will of Parliament and therefore be an unlawful exercise of the Royal prerogative.
How would the EU respond if UK asked to withdrew Article 50 notification?
Guy Verhofstadt , the European Parliament's Brexit co-ordinator, indicated in 2017 that if the UK remained in the EU it may lose its various opt-outs and budget rebate. However, there have been no such indications from the European Commission or EU government leaders in the European Council.
EU leaders have indicated they would be happy if the UK were to change its mind and stay in the UK without attaching any conditions.
Indeed, Verhofstadt's comments came after French President Emmanuel Macron had said that the "door" was "always open" for the UK to remain in the EU.
The President of the European Council Donald Tusk indicated in January 2018 that the EU was open to a "change of heart" from the UK and that EU "hearts" were "still open" for the UK.
Following this, European Commission President Jean Claude Juncker told the European Parliament, "we are not throwing the British out, we want the British to stay, and if they so wish they should be allowed to do so".
According to Lord Kerr, there would be no change in the UK's status if it were to revoke Article 50 before the withdrawal process had run its course. "(W)hile we're in, we're in; and there would be no price to pay if we were to decide to stay in," Kerr said in his Open Britain speech.
As noted above, Jean-Claude Piris, former legal counsel to the European Council, said that if the UK were to withdraw the Article 50 notification: "The current situation would prevail. The UK would remain an EU member State, with its current opt outs".
On the basis that the UK remains an EU Member State until it leaves the EU, if it were to formally revoke the Article 50 notification before the process had concluded, it would therefore remain in the EU and retain its current terms of membership. This would include current opt-outs for example in relation to euro membership and Schengen (though not the package of measures agreed with the EU by former Prime Minister David Cameron prior to the EU referendum in February, as these were never implemented).
It is possible that the CJEU opinion and decision on the revocability of Article 50, in relation to the case heard on 27 November, could also set out conditions for the revocability of Article 50. Possible conditions for revocability were raised in the Court hearing.
Can an independent state withdraw from treaty it doesn't like?
Pacta sunt servanda and terminating treaties
The international law rule pact sunt servanda as reflected in the Vienna Convention on the Law of Treaties[4] means that agreements are binding on the parties to them and must be carried out in good faith. It does not mean that treaties cannot be terminated; but the grounds for doing so are limited:
Termination by treaty provision or consent: a treaty may be terminated or suspended in accordance with a specific provision in that treaty. Even if there is no such provision, it can be terminated if all the parties agree.
Intended or implied right to unilateral termination: despite the principle of pacta sunt servanda, a state can unilaterally terminate a treaty either if it can be shown that the parties intended to allow termination, or if the right to terminate can be implied by the nature of the treaty.
Where the purposes and object of the treaty have been fulfilled or it is clear from its provisions that it is limited in time and the required period has ended.
Material breach by the other state: where one state violates an important provision and the other state (for bilateral treaties) 'retaliates' by regarding the whole agreement as ended.
Supervening impossibility of performance: where the agreement cannot be carried out because of the 'permanent disappearance or destruction of an object indispensable for the execution of the treaty'.
Fundamental change of circumstances: the doctrine of rebus sic stantibus provides that where there has been a fundamental change of circumstances since an agreement was concluded, a party to that agreement may unilaterally withdraw from or terminate it. This is narrowly interpreted: the existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty; the change must have been unforeseen by the parties; and the effect of the change must be to transform radically the extent of obligations still to be performed under the treaty.
[1] In R (Miller) v Secretary of State for Exiting the European Union the UK Supreme Court concluded that Government ministers lacked the domestic legal authority to notify an intention on the part of the UK to withdraw from the European Union under Article 50 TEU and that primary legislation was required to do so given that this would "constitute as significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act."
[2] For further information, see briefing paper 7763, Brexit and the EU Court, 14 November 2016
[3] Robert Craig, Why an Act of Parliament Would Be Required to Revoke Notification under Article 50 , U.K. Const. L. Blog, 16 October 2017
[4] See 1969 Vienna Convention on the Law of Treaties , article 54 onwards
Brexit Matters
In response to questions raised with me regarding Brexit I have sought clarity from a variety of sources including the Attorney General and the House of Commons Library, an impartial and independent body that provides detailed analysis to aide MPs in their Parliamentary duties.