Britain has some breathing space—but what to do with it? Donald Tusk, the president of the European Council, said recently that the extension of the Article 50 period until 31st October could give the UK time to “rethink Brexit,” and plenty of Remainers agree. So far, campaigners have largely focused their efforts on securing a so-called “People’s Vote” on whether the UK should leave the EU, while the Article 50 clock ticks. If Remain won, the UK would then revoke its Article 50 notice.
Some activists, however, do not want to wait, and have called for the UK to revoke now. Around 6m people have also petitioned the government to that effect. So how would it work in practice?
The European Court of Justice (ECJ) set out the basics of the process when giving judgment in the Wightman case last year. It gave us several important pointers on how revocation would play out.
First, this is a decision for the UK alone: if we want to stay, no EU member state can force us out. The court reasoned that it would not sit well with the EU’s commitment to the values of liberty and democracy, or its objective of ever closer union among the peoples of Europe, for a member state to be wrenched out of the EU against its will. In the same vein, other member states could not tamper with the UK’s membership. Current terms, including the UK’s opt-out from the euro and its budgetary privileges, would stay.
Second, the ECJ explained the mechanics. The revocation must be “submitted in writing to the European Council,” just as the initial Article 50 notice was, and it can happen at any time until the UK actually leaves the EU, whether there is a withdrawal agreement or not.
The court also held that revocation must be “unequivocal and unconditional.” That is open to different readings.
On the one hand, it might mean that the notice cannot leave the EU in any doubt that the UK wants the current Article 50 process to stop. The ECJ’s own gloss on “unequivocal and unconditional” was that the notice must make clear that “the purpose of that revocation is to confirm the EU membership of the member state concerned under terms that are unchanged.”
That suggests that the UK could revoke, while reserving the right to send a second Article 50 letter in due course—if, for instance, the UK held another referendum and voted to leave. However, “unequivocal” might mean more than that. Some EU lawyers think the UK would need to show an intention not to send another Article 50 notice and start the clock ticking again, at least for a while.
If the UK did try to revoke and there were question marks over whether the revocation was truly “unequivocal,” the issue could end up before the European Court of Justice again. Politicians will no doubt be keen to avoid the ugly legal questions that would throw up. Could the EU reject a revocation? Or even reject a subsequent Article 50 notification, if the UK decided it did want to leave after all?
One other uncertainty lingers over the revocation process: would parliament need to pass a new statute, authorising the prime minister to revoke? Views differ. Some lawyers have suggested that the prime minister could revoke without asking MPs, arguing that when parliament authorised her to trigger Article 50, they gave her a power to decide whether the UK should leave the EU or not. She, like the UK, can change her mind.
The meatiest treatment of the subject, though, comes from professors Gavin Phillipson and Alison Young, who argue that a new Act of Parliament would be needed. It is not legal, they say, for the prime minister to exercise her prerogative powers, such as the power to make and unmake treaties, in a way that frustrates the intention of parliament. By passing the European Union (Withdrawal) Act 2018 to ready the statute book for Brexit, parliament confirmed its intention that the UK should leave the EU. If it decides that the UK should stay after all, it needs to pass an Act to say so.