Breverse: Politically Problematic but Legally Possible, by Rose Slowe

14 June 2017 by Guest Contributor

On 29 March 2017, Theresa May’s Article 50 letter of notice was delivered to Donald Tusk, thereby formally triggering the Treaty-based process for the UK’s withdrawal from the EU. The question remains: is this trajectory irreversible, or can the UK rescind its notification?

While the legal arguments in favour of Article 50’s revocability have already been raised repeatedly in academic discourse, they now merit reconsideration. The results of the UK general election on 8 June have brought about a substantive change of circumstances, and the notion of Breverse no longer seems relegated to the realms of academic hypotheticals. This post explores the legal reality of revocability as a matter of UK constitutional, EU and international law, before considering how the current political situation interacts with this.

Article 50(1) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The Supreme Court confirmed in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, that, as a matter of UK constitutional law, only an Act of Parliament can authorise, and give effect to, changes in domestic law and existing legal rights. The majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, getting rid of it is a matter for Parliament and not ministers relying on the relics of the Royal Prerogative.

The 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), enacted in response to Miller, fails to satisfy this constitutional requirement as it merely permits the Prime Minister to give notice under Article 50(2). As set out in the so-dubbed Three Knights Opinion, the only way that the Notification Act could serve as the legislative basis for the UK’s withdrawal from the EU would be if it was ‘read as an exceptionally wide enabling law, handing to the Executive power to decide which legal rights may be given away or lost through negotiations with the EU, or by leaving the EU without an agreement.’ To do so would fly in the face of the Supreme Court’s ruling in Miller, in which paramount constitutional importance was placed upon express statutory authorisation.

It is submitted that it is in fact impossible for an Act of Parliament to expressly authorise Brexit prior to conclusion of the Article 50 process because the terms of withdrawal, and concomitant change to domestic law and rights, are unknown until this time. It follows that further statutory authorisation will be required to give legal effect to the UK’s decision to leave the EU upon conclusion of negotiations. As the Three Knights Opinion reasons, ‘Parliamentary sovereignty and the principle of legality require Parliament expressly to authorise withdrawal from the EU on the terms agreed with the EU, or to authorise withdrawal if no acceptable terms can be agreed.’ Support for this postulation can be inferred from the dissenting judgement of Lord Carnwath in Miller [259]: ‘whatever the shape of the ultimate agreement, or even in default of agreement, there is no suggestion … that the process can be completed without primary legislation in some form’ (emphasis added). The proposed ‘Great Repeal Bill’ falls short in this respect, for reasons that I have explained elsewhere.

If, as argued above, an Act of Parliament at the end of the negotiation process is a UK constitutional requirement, it follows that Article 50 must be read as allowing a decision to leave the EU to be conditional on that requirement being met. By extension, notice can be unilaterally withdrawn or otherwise would lapse if this constitutional requirement is not subsequently satisfied at the domestic level.

Although Article 50(3) specifies that ‘The treaties shall cease to apply to the State in question… two years after the notification referred in paragraph 2’ (emphasis added), with only an option for bilateral extension of the negotiation period provided, there are compelling arguments as to why this is not a foregone conclusion per se.

First, analysis of the text of Article 50 suggests that revocation is permissible. Pursuant to Article 50(1), a decision to withdraw must be in accordance with the Member State’s constitutional requirements, however, for the reasons set out above, these requirements cannot necessarily be satisfied at the time when notice is given. Article 50(1) and (2) should therefore be read concurrently as opposed to sequentially, meaning a Member State’s constitutionally compliant decision to leave the EU does not have to be effective before notice under Article 50(2) is given. This is supported by the language of Article 50(2), namely the use of ‘intention’ and the present tense ‘which decides’, rather than ‘has decided’. The absence of any provision precluding revocation indicates that this is otherwise permitted. In addition, Article 50(5) addresses the situation where a Member State has withdrawn from the Union but later changes its mind and asks to re-join, but there is no comparable provision for a Member State that changes its mind prior to withdrawing indicating that no formalities apply and membership status is simply retained. In evidence given to the House of Lords Select Committee on the European Union in March 2016, Professor Derrick Wyatt noted that it would be illogical if a Member State was not allowed to change its mind and revoke its notice after a year of thinking about it, but before it had withdrawn, as it would then have to wait another year, withdraw and subsequently apply to join again.

Second, it would be incompatible with the EU Treaties for Article 50 to have the effect of ejecting a Member State against its will, or contrary to its own constitutional requirements. Article 50 is a mechanism for voluntary withdrawal, not expulsion. It is, in fact, inconsistent with the fundamental principles and aims of the EU for a Member State to be expelled. Even Article 7 TEU, the most severe sanctioning mechanism the EU has at its disposal, stops short of ejecting a Member State found to be in breach of the Union’s founding values. Further, Article 50 is premised on respecting a Member State’s constitutional requirements. If, in accordance with its constitution, a Member State changes its intention to withdraw, it would be inconsistent with the Treaties’ integrationist rationale and their emphasis on shared democratic values for Article 50 to be interpreted so as to not permit this.

Third, international law and practice warrants consideration. Almost all supranational organisations require a ‘cooling off’ period between announcement and effective withdrawal, thereby providing a timeframe within which the withdrawing state can change its mind. In addition, Article 65 of the Vienna Convention permits a party to give notice of withdrawal from a treaty, which Article 68 provides may be revoked at any time before it takes effect. This law of treaties influenced the development of Article 50, and the latter therefore ought to be interpreted compatibly with the former.

Fourth, when interpreting Treaty provisions the consequences must be born in mind. As Professor Craig explains, to read Article 50 as not allowing for the possibility of substantive change in circumstances in a withdrawing Member State within the negotiating period would potentially give rise to catastrophic consequences.

Domestic circumstances have certainly started to change. The 2017 General Election returned a hung parliament and a minority government. Theresa May’s pursuit of a hard Brexit appears to have been overwhelmingly rejected by the electorate. If negotiations with the European Council break down, or a detrimental deal is all that is offered, will Parliament really give statutory authorisation for withdrawal if this no longer seems to be the ‘will of the people’ or in the best interest of the country? Legally, there is no obligation on Parliament to authorise the executive’s Brexit. The referendum of 23 June 2016 was not legally binding, despite Parliament’s ability to have drafted it in a way which would have rendered it such.

The question then arises as to the consequences if the constitutional requirement of Parliament’s express statutory approval is not satisfied upon conclusion of Article 50 negotiations. The Three Knights Opinion contends that, if Parliament were unwilling to consent to the negotiated agreement or to approve of withdrawal without any agreement in place, the notification issued under Article 50(2) would either lapse or could be unilaterally withdrawn. In such circumstances, Article 50(3) would not automatically expel the UK as – in accordance with the EU Treaties and customary international law and practice – no Member State can be forced to withdraw otherwise than pursuant to a voluntary decision taken in accordance with its own constitutional requirements.

Rose Slowe is an Honorary Research Fellow at the School of Law, University of Bristol