Posted by: Stephen Hockman QC, Christopher Badger and Stuart Jessop.
Article 50 reads:
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- A Member State which decides to withdraw shall notify the European Council of its intention. In 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. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- 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.
- For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
- If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
No reference is made within the text above to whether or not a Member State can change its mind after triggering Article 50. The judgment in R (Miller & Anor) v Secretary of State for Exiting the European Union  UKSC 5 records at paragraph 10 that it was common ground between the parties that a notice under Article 50(2) cannot be withdrawn, once it is given. There is a considerable body of opinion that supports the proposition that Article 50, once triggered, is irrevocable.
Yet it remains highly arguable that, because the opposing views were never argued in the Supreme Court, Miller is not an authority for the proposition that Article 50, once triggered, is irrevocable. On a practical note, had the parties not agreed this common ground, it would have been almost inevitable for the UK to make a reference to the CJEU to ask the CJEU to determine whether Article 50 was irrevocable, a fact that would almost certainly have been unthinkable in the eyes of the public.
Public figures who have suggested that the UK can change it mind even after Article 50 has been triggered include John Kerr, former British ambassador to the EU (who is recorded as having drafted Article 50) told the BBC that legally, the EU could not insist that the Member State leave the bloc, simply because Article 50 had been triggered and Donald Tusk, who declared on 13 October that “there are no legal barriers for this kind of decision”.
The dominant arguments, both legal and pragmatic, in favour of the UK being able to change its mind can be summarised as follows:
i) Article 50(2) is predicated on an “intention” to withdraw. If there is no “intention” to withdraw, because the UK has changed its mind, then there can be no withdrawal. Article 50 is not a framework for the expulsion of a Member State;
ii) Article 50(1) records that a decision to withdraw must be in accordance with that Member State’s “constitutional requirements”. Notification to withdraw can be distinguished from a decision to withdraw. Miller had confirmed that a decision to withdraw can only be determined by Parliament. As the decision to withdraw will affect rights currently enjoyed by UK citizens as a consequence of EU membership, a further Act of Parliament is required to give legal effect to a decision to leave the EU. It therefore remains open to Parliament to refuse to pass such an Act, frustrating the process of withdrawal;
iii) The EU exists, in part, to further the interests of its members. If the collective interest of the members of the EU was in favour of the UK remaining part of the bloc, it would be contrary to common sense to refuse to permit the UK to change its mind.
The dominant legal and pragmatic arguments taking the counter position can be summarised as follows:
i) Article 50 makes no reference to a Member State being able to change its mind. It requires, as a precondition to triggering Article 50, a decision by the Member State to withdraw. Due to the overwhelming unilateral nature of Article 50 (it doesn’t even provide for the Member State to justify why they are leaving or to allow for the EU and that Member State to resolve their differences) then any decision to leave the EU should be taken as final.
ii) It is self-evident that it would be potentially harmful to the EU if a Member State were able to change its mind again and again until negotiations go its way;
iii) In Miller the decision was taken to reach common ground that notification was irrevocable. Whilst the decision may not be binding authority on the point, politically it would be very difficult for the Government to adopt a different stance. The pressure to withdraw is exacerbated by the fact that Parliament is clearly of the view that the result of the referendum demonstrably indicates that the public will is in favour of withdrawal and to reverse course would be to unjustifiably ignore the views of the electorate.
It remains a fact that, with respect to John Kerr, Article 50 is not well drafted. There is no explicit provision for a Member State changing its mind. There is also no precedent for withdrawing from the EU. As a result, it is impossible to be definitive at this stage as to whether or not it is possible for the UK to change its mind after triggering Article 50.
In our view, rational legal analysis favours the arguments that support being able to change course. But such an approach ignores the very real political current in favour of Brexit. Those that would like to retain the option of remaining in the EU would be well advised to recognise the need for a substantial shift in public opinion before this becomes a live prospect. In a later blog, we will explain how this might come about.
Next week – Can notification under Article 50 be conditional on a “good deal”?
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