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Coming back to EU – can A50 be revoked?

October 13th, 2017

Picture: The justices of the CJEU

Alastair Meeks, who correctly forecast the outcome of the Article 50 Supreme Court case, gives his view if Article 50 is revocable.

Britain is not going to be rescinding its Article 50 notice.  The Government doesn’t want to and nothing in the current progress of negotiations is bringing Britain back closer to the rest of the EU.  All of which makes a lot of the speculation about whether Britain could revoke that notice rather theoretical.  Yet like malaria the idea keeps coming back, resulting in lawyers breaking out in a delirious fever.

Why does it keep coming up?  Two unconnected groups are fond of the idea.  The first group are your actual straight-down-the-line irreconcilable Remainers who have always hated the idea of Brexit.  The other group are an assorted bunch of pragmatists who are horrified at what a balls-up the Government is making of the Brexit negotiations and who want to withdraw the notification so that Britain can take stock of how it will go from here.

Hadn’t all this been sorted out by the Supreme Court earlier in the year?  Actually, no.  The Supreme Court did not have this point argued before it.  Gina Miller argued that an Article 50 notice was irrevocable because it suited her to be able to say that if the Government had the power to issue an irrevocable notice, Parliament couldn’t undo its act.  The Government chose not to argue the contrary, presumably because the point might well then have been referred to the CJEU, which would have been incendiary for the stauncher Leave supporters.  So the point went by default.

Since then, the draftsman of Article 50 of the Treaty on European Union, Lord Kerr of Kinlochard, has claimed that his view was that a notice under Article 50 was intended to be revocable.  Theresa May has fanned the flames by declining to comment on whether the Government has received legal advice to this effect.  So the point refuses to die.

Like any lawyer, ask me a question and I’ll give you an answer (for a price), even if the question is theoretical.  This is quite a pure question of law, turning on the interpretation of relatively few words.

Article 50 provides (so far as is relevant):

“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

  1. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union…
  2. 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…
  3. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

There is a curious point to note here which has not been given much coverage in the press.  The Article 50 notice is not really the important step here.  The important step is the member state’s decision to withdraw.  Once that decision has been made, the member state is under an obligation to notify the European Council but the notice is a procedural formality (though consequences flow from it as we shall see).  The question, therefore, is not whether the notice can be unilaterally withdrawn but whether the member state can unilaterally undecide to withdraw before it has left.

This is important in relation to one regularly aired argument, which is that Article 68 of the Vienna Convention allows Britain to withdraw its notification.  If the vital step is not the notification but the decision, the provisions of the Vienna Convention that concern the withdrawal of such notification would not by itself be of relevance for bringing the process to a halt.

(In any case, Article 68 is limited to withdrawal notifications made under Article 65 and 67 of the Vienna Convention, which are precisely set out, and it is far from clear whether these include the current circumstances.  Finally, not all EU member states are signatories to the Vienna Convention, so unless this provision forms part of customary international law – debatable – it is of no relevance anyway.)

Regardless of the applicability of Article 68 of the Vienna Convention, a revocation could not be issued if the member state had not genuinely decided, in accordance with its constitutional requirements, to change its mind.  It would not be a genuine revocation and it would be inconsistent with the member state’s notification duty under Article 50(2) of the Treaty on European Union.  So any attempt by pragmatists to reculer pour mieux sauter would in my view be clearly invalid and ineffective.

So much for correcting the balls-up.  What of the irreconcilable Remainers’ hopes?  What if Britain saw the light and changed its mind?

There is a short point which I think answers this question, which is simply to apply the straightforward meaning of the words of Article 50.  Article 50(3) of the Treaty on European Union provides that: “The Treaties shall cease to apply to the State in question from… 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”.  Nothing in Article 50(3) suggests that any purported revocation notice will affect this timetable: the notification has set the clock ticking and a revocation notice doesn’t stop it.  Once the self-destruct sequence is initiated, the ship’s computer will accept only a unanimous extension (or an amendment under the Treaty’s provisions to vary its effect).

Another provision of the Vienna Convention, Article 31, provides:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

I’m confident that this does form part of customary international law.

My suggested interpretation would seem sensible and practical in the context of a complex multilateral treaty of great scope and depth.  The scope for disruption to other member states and the EU of allowing countries to issue withdrawal notices and rescind them on a whim would be unjustifiable.

It is worth noting that on this analysis it is irrelevant whether Article 68 of the Vienna Convention applies.  Whether or not Britain has the power to issue a revocation notice, it is ineffective to stop the Treaty on European Union timetable.

So while I have major qualms about contradicting the draftsman of Article 50, in my view it seems to me that the process cannot be unilaterally unravelled by Britain.  It has gone over the edge of Niagara in a barrel.  It cannot swim back upstream unless the rest of the EU decides to intervene to help.

Alastair Meeks