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Article 50 revocability case in CJEU (for EU law geeks)

It's being reported in the media that Advocate General Manuel Campos Sanchez-Bordona has given his opinion that the Article 50 notification is unilaterally revocable.

Non-binding opinion of course, so we will have to wait and see what the Court's final decision is next week.

The Council and Commission's position is that it is only revocable with unanimous agreement from all member states, which is the conclusion I think/thought the Court is likely to reach as well. But the Court does usually decide the same way as the Advocate General, so this is an interesting development.

I think they would, but the big difference is that if the Court rules in line with the A-G's opinion, if we wanted to remain on current terms we wouldn't be at risk of one member state (hi, France!) saying, "OK, but if you want to stay we'll need to rediscuss that rebate..." etc.

It also creates a timing issue. Article 50 is clear that in order for the two year withdrawal period to be extended, all member states must unanimously consent to it. (This is the main reason why I tend to agree with the Council and Commission's position.) That means that potentially we could have the power to revoke unilaterally up to 29th March, but not to extend unilaterally. We don't have time to have a further referendum between now and March, so if we couldn't get agreement to an extension from all member states we might be faced with a choice between no deal or unilaterally revoking the Article 50 notification and remaining in the EU without another referendum.

It's an interesting conundum.

 

what's most interesting is that most journalists don't seem to appreciate it's not a judgment, it's an opinion (albeit of a type that the judges agree with c 80% of the time)

Further (long-term) prediction: if the Court agrees with the A-G (and perhaps even if they don't), I think it is likely that the wording of Article 50 will be revised in the next Treaty.

This is not a non-point politically at all. If the court agrees we can unilaterally revoke article 50 it completely transforms the final stages of the negotiations because the EU can no longer threaten us with a disorderly hard Brexit.

If it gets to that point we just revoke article 50 the day before Brexit and serve it again the day after triggering a further two year period.  Serving the article 50 notice without a deal was insanity (as I said at the time).  This gives us a way out of that.  

 

Except that in order to trigger Article 50 "in accordance with [our] constitutional requirements" we would need the consent of Parliament. So no withdrawing Article 50 on 29th March and then triggering it again on the 30th.

Lady P - why not?  Against the backdrop of the threat of a disorderly hard brexit parliament could be asked to endorse (and indeed require) the government doing just that (revoking and re-triggering). 

Grant - I will confess I lack the time to read the AG's opinion.  Please show me where it says that unilateral revocation means Article 50 cannot then be re-triggered.  A link to the relevant section will do just fine. 

It says that the right to revoke cannot be used abusively.  The doctrine of abuse of rights is common in EU law, and revoking with the intention of immediately re-notifying would almost certainly be abusive.

 

In any event, the actual opinion hasn't been released yet.  What has been released is a press release explaining what the opinion says.

DD - and if A50 was revoked and immediately re-triggered, do you think EU27 would be interested in re-negotiating with the UK?  If an extension was required to sort something specific out, that would be agreed instead.   

 

Donny, I haven't read the actual opinion. (Although I am looking forward to it!) I'll be interested to read the part about revoking abusively.

But politically speaking, parliament is just simply not going to do that. They voted to trigger Article 50 on the basis that they would have a "meaningful vote" on the deal. They now know what the deal is, and most of them are intelligent enough to realise that we (not May, not Boris, certainly not Corbyn) are going to get a "better" deal than the one currently on the table without accepting free movement.

I daresay quite a few MPs now regret voting to trigger Article 50 in the absence of a solid plan, and probably feel they were pressured into it by the prevailing climate of "ENEMIES OF THE PEOPLE!!!!" being screamed from the front page of every tabloid.

They are quite simply not going to let the government revoke the Article 50 notification and then give them carte blanche to spend the next two years repeating all the same shit over again.

Dream on.

OK. If a straightforward revocation and re-service wouldn't work then it is less useful as a negotiating tool but it still changes the dynamics of the discussion.  It's hard to see, in circumstances where parliament has rejected TM's deal, that it could be regarded as an abuse to revoke while discussions continue on a deal that enables the UK to leave on terms acceptable to it's democratically elected institutions (or perhaps ultimately decide not to leave if it can't reach such terms) would amount to abuse. That still gives us the option of getting back to where we should have been (i.e. we don't agree to leave until we know the terms for leaving which are available). 

Donny that just wont happen, we know it and the EU knows it.  If A50 is revoked there is no way we are going through this again.   If the intention is to negotiate a  Norway plus or allow time for a referendum, A50 will be extended.  If A50 is revoked we are remaining.

The purpose of Article 50 is to give member states a mechanism for leaving the EU. It clearly sets out a two year time frame for negotiating a withdrawal agreement. (For what it's worth, I think this is batshit. It took longer than that for Greenland to negotiate its withdrawal from the EEC in 1985, FFS.) But the objective is clear: to set some parameters to ensure that all parties focus on negotiating an orderly withdrawal within a reasonable time frame.

By revoking your notification under Article 50, you are saying, "we no longer wish to leave the EU". It's hard to see how revoking it and saying, "we still wish to leave the EU but we want to bin all the work everyone has done over the last two years and start again because we didn't get what we wanted" would not be regarded as abusive.

"s hard to see, in circumstances where parliament has rejected TM's deal, that it could be regarded as an abuse to revoke while discussions continue on a deal that enables the UK to leave on terms acceptable to it's democratically elected institutions"

 

It wouldn't be abusive, but why on earth would the EU engage in such negotiations?

The bigger picture is that everyone accepts the EU needs reform.  The french and germans generally want tighter integration.  Most others don't.  By some distance, the most sensible thing to do would be to remain, with the spectre of the referendum in the background, and lobby with European allies for appropriate reforms.  Given what's going on in Italy and Germany and Spain on immigration, does anyone seriously think the conversation would be the same now as when Cameron had it?

 

Our glorious leaders are squandering an opportunity to mould the future through their intellectual rigidity and moral cowardice.

Lady P - so you think parliament is going to vote to accept the deal?  I struggle with that... Which means you have to think politically that parliament will prefer a disorderly Brexit to revoking and spending time agreeing a new deal (after a general election which could be fought on what the deal should like/whether we should remain instead). 

As for a 'better' deal free movement is only a red line because we have a xenophobic nutcase for a PM.  That could easily be changed. 

Kimmy - it is not in the EU's interests to 'trap' Britain in the EU.  They need an end to the uncertainty and there is no way the project could advance while Britain was in there if they adopted a 'fvck you, we aren't negotiating' strategy since Britain would clearly never ratify any future treaty and would use its veto wherever it could to prevent closer union. 

The purpose of Article 50 is to give member states a mechanism for leaving the EU. It clearly sets out a two year time frame for negotiating a withdrawal agreement. (For what it's worth, I think this is batshit. It took longer than that for Greenland to negotiate its withdrawal from the EEC in 1985, FFS.)

I think it was probably envisaged that a country would have at least some idea of what its post leave arrangements were like before triggering A50 Anna, the madness is not with the rules but in triggering it while we had no clue, not only of what we might get, but what we even wanted.

LF - I sort of agree with you but the problem is that the statement 'everyone agrees the EU needs reform' has been pretty much as true as it is today for a very, very long time now and progress has been somewhat slow. 

 

 

I think the timing of the AG's opinion is brilliant, although a decision of the full court would be better.  I note it was the "full" 27 judges sitting (poor Chris Vajda left out, presumably due to conflict).

 

But it means the debate in parliament is no longer "this deal or no deal", it is "this deal or remain and seek to influence the shape of Europe".

 

Seriously - any threat of no deal at this point should give rise to full on public unrest.    I would honestly challenge the legitimacy of a parliament that took the no deal route.

No Donny.

I think parliament will vote against the deal and then refer the question back to the people. Ultimately, there isn't much appetite in parliament for leaving the EU at all. They have only got behind Brexit because they felt they couldn't really do otherwise, having legislated for the referendum and got a clear result. But assuming the deal doesn't go through, we arrive at an impasse where there is no "will of the people" for any of the available options, so their only real choice is whether to go for no deal or remain without involving "the people" in their decision, or go back and ask the question again and hope for a different answer.

Guy - the problem was that the EU specifically refused to engage in discussions until Art 50 was triggered and TMPM cracked under political pressure at home.  The moment we triggered it we were fvcked. 

No deal will not happen and I agree if it is contemplated by the government will lead to significant civil unrest.  Any government that allowed it to happen would be out of power for decades.  The deal on the table will not happen because it potentially binds up more permanently to the EU than staying in it, without most of the advantages, one of the worst international deals in history.  That only leaves remain or EFTA.   My money is on remain at this stage but obviously requires a referendum and depends on how many of the population holds brexit as a faith rather than using rational thought.

But as I said above, assuming that the Court agrees with the A-G on the irrevocability point and that Parliament votes down the deal, there is a possibility that the EU27 could scupper the "People's Vote" by refusing to agree to an extension of the withdrawal period. (It would only take one member state to dig their heels in.) And then we will potentially be in a very situation where parliament has to decide between no deal and remain without holding a further referendum.

Donny - what you mean is that there is no time to go back to the people unless the withdrawal period is extended.

We will not revoke the Article 50 notification and then proceed to have another referendum. If we revoke the Article 50 notification we will remain in the EU until further notice.

Crossed posts Anna but yes that is the problem and I suspect the EU would seek to influence the referendum question in discussions about an extension or otherwise seek to influence the result (I don't think they will be able to stop themselves). That will leak and all hell will break loose. 

 

 

Anna, I don't think politically there is any way we can revoke A50 without a referendum.  In order to get another referendum we are going to have to extend A50.  I think it very unlikely the EU would block this having publically stated Brexit is lose lose.

As above, they may not block but they will seek to interfere/somehow gain an advantage.  All the way through the EU has either not appreciated (or not given a fvck) how that plays with the British public.  

I think it's unlikely "the EU" would seek to block it, but the wording of Article 50 is clear. Any one individual member state could block it. In theory, Estonia could block it, just to piss us off.

I've just realised another curious thing.

The key provisions of the European Union Act 2011 (requiring any further transfer of power to the EU to be subject to a referendum in the UK) have now been repealed.

So, let's just say we revoke the Article 50 notification and remain in the EU until further notice. Life goes on, the EU gets back to business as usual, and in due time a further Treaty is contemplated. Unless Parliament decides to reactivate that repealed legislation, that next evolution of EU primary law isn't subject to a referendum lock in the UK.

Plus the whole EU elections piece which is a bit of a spanner to delaying Art 50. 

In large part it depends if TMPM continues to run down the clock. The worst of all possible worlds is this bullshit point on the backstop getting traction. We will never win it but it would be a good excuse to run another month off the clock before coming back to parliament in mid-Jan. You’re then 6 weeks off of hard Brexit with revocation (without a ref) or TMPM’s shit sandwich as the only options. 

I wonder if it would be possible to either delay the European Parliament elections by six months or hold them without the UK and then hold separate European Parliament elections for the UK in order to enable UK MEPs to join the European Parliament in the event of a second referendum and a vote to remain. Not sure how the parliamentary arithmetic would work.

Actually, I think that second option must be the answer. Accession states don't join the EU to coincide with the European Parliament elections, so they must just hold their own elections and when they join and add their MEPs to the parliament from that point onwards.

Can someone explain why a referendum cannot be done in say 4 weeks? Even allowing for the fact there needs to be a change in legislation. That legislation can consist of 3 lines ?

I can't decide whether Article 50 is a terrible piece of legislative drafting or a brilliant one. I have long regarded it as sloppy, but if it helps to create a situation where we end up not leaving the EU, I could be convinced otherwise.

Has anyone asked the author of A50 why he didn't actually include an express reversal mechanism within the treaty, seeing as delay and withdrawal options were expressly included? As far as drafting ommisions go, that's a pretty huge one.

 

It's a good question.

I think there are two possibilities.

Either it was a deliberate omission in order to give the parties less rope to hang themselves with. If you include an express provision to say the notification is unilaterally revocable then there is really nothing to stop member states from triggering Article 50 capriciously and then revoking the notification if they don't get whatever it is they want within the two year period. If you include an express provision to say it is irrevocable then the withdrawing state would leave at the end of the two years by operation of law even if it was no longer what any of the parties wanted. And if you include an express provision to say it is revocable subject to unanimous agreement by all parties, then you have a situation where one member state could prevent the withdrawing member state from being able to revoke their notification even if all other parties wanted to stop the process. Being deliberately vague in the legislation leaves space for the affected parties to do some sort of legal fudge depending on the circumstances at the time and what kind of outcome they want. And the EU loves that.

Alternatively, it was a legislative fook up.

Your guess is as good as mine.

He would probably say that it was not required because the issue is dealt with in Articles 65-68 of the Vienna Convention.

Art 68 explicitly permits that notification of a withdrawal from an international treaty may be revoked before it takes effect.

 

Yeah the difficulty with resorting to the VCLT is that it relies on the lex generalis principle in the absence of express provisions in the treaty in question. The lex specialis in the treaty is Article 50 itself, so an argument that the VCLT applies to it at all is quite controversial.

Is that right, given that the question relates to something which just isn't covered by Art 50?

Don't you just rely on Vienna (AAAAAAHHHH, VIENNAAAAA) to fill the gaps, and this is an obvious gap.

On a strict reading of Article 68, I would say not.

Article 68: A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect.

The notification in question was not provided for in Articles 65/76 of the VCLT; it was provided for in Article 50 of the TEU.

 I would hate to see a GE before Brexit has been settled either way. It has been screaming out for a cross party approach and came there none...imagine if a no confidence vote went through next week (DUP/SNP/Lab all keen) and instead of Brexit terms settled we had to start over. We would simply end up on March 29 with another lame duck goverment and no further forward.

cross party would be relatively simple - present a deal, parliamentary vote and go with a majority. It doesnt have to bring down a goverment. If after all that there is appetite for a GE then fine.

I was quoting from the Ultravox version of Vienna, but if you are a philistine, then you are a philistine.

AG in the article 50 case seems to agree with me on Art 68.

"The Advocate General interprets Article 50 TEU, having recourse, with regard to what is not expressly provided for in that article, to the relevant provisions of the Vienna Convention on the Law of Treaties on which Article 50 TEU is based. Pursuant to Article 68 of that convention, notifications of withdrawal from an international treaty may be revoked at any time before they take effect."

Hmm. Does that mean we could unilaterally withdraw from the backstop agreement while still in the transition period, citing the Vienna Convention as legal cover?

If so, oops.

No, because specific provisions govern the mechanism for withdrawing from the backstop, and Vienna only applies (or provides interpretive guidance) in the absence of other provisions.

Backstop has other provisions.

Darn it, now I have to read that blasted document to find out about its repudiation mechanisms. While also dredging up my knowledge of public international law from, erm, 1994....

Miinkie I agree generally about a GE but I think if we had one Labour would end up having to commit to a 2nd referendum so things would be a bit clearer cut, albeit it would be better just to move straight to a referendum

Have a look at pages 30-32 of the Attorney general's summary of his legal advice, that gives a pretty good summary of the exit provisions for the backstop protocol.

I know Labour are agitating for a general election but that wouldn't solve anything. Even if they campaigned on a remain ticket (with or without a referendum) they're not going to get more than 50% of the vote (and even if they did it might not get them an overall majority thanks to the parliamentary arithmetic. And if they didn't campaign on a remain ticket, the whole thing would be a farce, quite honestly. Nobody needs to be told, after another messy, ugly election, that the country supports Brexit because 90% of voters voted for the Tories or Labour, both of whom support Brexit. No, that would be an utter waste of time.

Either parliament takes control or we move to a People's Vote. 

Minkie I was about to say it's hard to see any recent behaviour in Parliament that couldn't be described as disgraceful but actually that would be unfair. There are some real stars of this show, from all parties. It's great to see parliament finally fighting for their own sovereignty. 

But Corbyn says he won't do the debate if there is anyone from the People's Vote camp involved. He wants it to be just him and Theresa May. There is absolutely no fooking point in holding a televised debate about a Brexit deal which Theresa May (an erstwhile remainer) is promoting as the only way to leave the EU and which Jeremy Corbyn (a dyed in the wool Brexiter who reluctantly supported remain under duress) is rejecting because he thinks he can get a better one, when everyone knows he can't.

If the debate goes ahead in this format, he'll be shooting himself in the foot because people will watch it and wonder what he's offering. If he's only offering slightly different chaos with Corbyn and a shitty Brexit deal in red ink, as opposed to more of the same chaos with May and a shitty Brexit deal in blue ink, what's the point of him?

The only way he can offer something different and better to what May is offering is if he comes out in favour of a People's Vote with the option to remain. 

If Theresa May wants to kill off both Corbyn and the hard Brexiters in her own party in one fell swoop, she should call for a People's Vote herself as soon as her deal gets rejected by Parliament. Because then a clear majority of Parliament will vote to keep her in place. 

​​​​​​​it is Corbyn who wants the head to head debate. Because he wants to turn it into a GE platform. Easy isnt it, he can just rain criticism down on her head, he doesnt even need to have any solutions himself, who is going to stop him?

I think she will go for the peoples vote actually Anna, she has been tight lipped over plan B but surely has one and that is the only option.

Maybe this has been her strategy for a while. Let's see what she does when her deal gets voted down. It's hard to imagine that Theresa May is really a secret genius rather than a bungler, but who knows? 

 i still think a peoples vote is a bad idea, Remainers think it’ll be like Bobby Ewing in the shower but it wont. I dont think it will settle anything.

Still cant see how we’re going to avoid it though.

Practical problems with another ref

1. What binary choice goes on the ballot paper?

2. What if there is a low turnout?

3. What outcome(s) are proponents expecting?

i think these issues will bog it down and waste time.

in 1. above, I think if the May deal is rejected by parliament it cannot be on the ballot paper. That leaves no deal brexit or remain as 5he only voting options. In other words, far extremes of either side. Lovely.

2. All hell will break loose if you have the options in 1. above and Remian wins, more so with a low turnout. And parliament has already made clear they wont have no deal.

wed be fvcked either way.

1. a) Remain vs May's deal

   b) Remain vs no deal (parliament won't allow this) 

   c) Remain or leave, if leave, May's deal or no deal? 

2. Then there's a low turnout. People can't be forced to vote. 

3. The outcome might depend on what goes on the ballot paper but I think remain would take it. 

What is your evidence for saying that "all hell will break loose"? Really? Get a grip, Minkie. About a quarter of the population voted to leave the EU, many of them pensioners, and most of them don't have the slightest inclination towards civil unrest. And those that do, well what do you think they will do if we leave with no deal and there are food and medicine shortages and planes are grounded? These people will riot either way so we just have to forewarn the police that they'll all be doing overtime until the knuckledraggers have run out of steam or all been arrested. 

 

How can you put Mays deal on the ballot when parliament has already chucked it out?

i agree no deal isnt really possible as a choice either seeing as no one wants it.

so, leave or remain. But we did that already.

 

Well you have to put a leave option on the table and Parliament likes that even less than they like May's deal. So that seems the most likely outcome.

Wonder if Dominic Raab would put his money where his mouth is and vote remain? 

How sure are we that Remain finds itself on a People's Vote ballot paper?

If May is going to hold to the line of 'the people have already voted to leave and the manifesto of both parties was to respect that', does she ask the public to let her amend her 'red lines' by offering up Norway/EFTA vs No Deal?

That let's most MPs save face, honours their pledges to leave etc, whilst giving a decent chance of avoiding a No Deal* (on the assumption Remainers grudgingly fall into line).

(*which has more right to be on the ballot paper than Remain does - you can't go to the public again in a referendum without a hard Brexit option)

If the deal is rejected and there is a second referendum, it should be a binary choice Stay or Hard Brexit (Canada plus plus). She probably could have pushed through a deal based EEA membership two years ago. It was leaving the EU, very hard for the Labour Party, SNP even Lib Dem’s to oppose and manage public expectations. She would have pulled the majority of her party with her, including people like Gove, whose aim is leave and then possibly move further away later. Yes the head bangers of the ERG would have rebelled but they proved to be a paper tiger anyway. That Avenue is now closed, EU made clear thus is only deal on table now. It’s now stay or hard Brexit assuming this deal falls on 11th Dec.

1) who decides what goes on the ballot paper, and I suspect they will never as between them agree the precise wording, so what then happens?

2) Why are people saying a referendum cannot be agreed in time there is still 5 months to go?

3) I see loathsome is already hedging about disclosure , saying they will pit it to cabinet as soon as they can, and will let the house know ASAP. wtf does that mean, anyone?

4) I still feel these w**kers won't disclose it in time for opposition to consider, and they will be ambushed. And/or in the alternative huge swathes will be redacted. What happens in those circs?

Ok, I bet disclosure will take place on Friday . Not that disimilar to a party serving their expert report on the last day as provided under a directions timetable in litigation so as to ambush the other side.

Anyone think the hard brexiteers might come round to a second referendum as their only chance of a hard Brexit now. Seems it’s this shit sandwich of May deal or descending into chaos with Parliament guaranteeing there is no hard Brexit for sure. At least with a referendum they have a reasonable chance of achieving their aim and shunting up the remainders for good.

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