"In the meantime, we can stop brexit ourselves at any time in those two years.
Again I think you misunderstand article 50. We can only withdraw our article 50 notification with the agreement of the other 27 states. I doubt if the Belgian Walloons would agree and therefore Belgium. So I think the one thing Nige has been absolutely right about is that we are now out of the EU regardless of any second thoughts."
I disagree, though I stand to be corrected.
Article 50 is a piece of European law, so the ultimate arbiter on this issue is the European Court of Justice. I think there is an ongoing case in Dublin at the moment that is seeking to refer the question of irrevocability to the European Court to get a definitive answer.
In the meantime I'll explain why I disagree.
‘Triggering Article 50 does not mean it cannot be later revoked, according to a leading EU lawyer who helped write it.
“My opinion is that there is no legal provision in Article 50 providing that when you give your intention you cannot change your intention, so I think it’s possible legally,” lawyer Jean Claude Piris told Sky News.’
Taken from a report in The Independent last September.
‘Lord John Kerr, the former UK diplomat who drafted the rules dictating how a county leaves the European Union (EU), said he never believed Britain would use the mechanism he designed.
As Secretary General of the European Convention in the early 2000s, Lord Kerr played a key role in drafting a constitutional treaty for the EU that included laws on the process by which states can leave the bloc.
Lord Kerr has frequently insisted that Article 50 can be reversed, should Britain decide at a later date within the two-year negotiating period that it does not want to leave the EU after all.
“I think if you ask an EU lawyer, he will tell you straight away that of course it’s not irrevocable,” Lord Kerr said.
“And if the issue was decided in a court, it would be decided in the European Court of Justice and it would be found that it is not irrevocable. The rules of the game in the EU are that you can change your mind."
Taken from a report in The Independent yesterday, but also widespread in many news outlets.
It would seem that these two gentlemen could be said to be fair authorities on the matter. So that is why I think we CAN withdraw our intention to leave unilaterally if we wish.
I haven’t seen the final motion for a resolution of the EU in response to Mrs May’s Article 50 letter, but in the draft motion the relevant section is worded thus:
‘L. Whereas a revocation of notification needs to be subject to conditions set by all EU-27 so they cannot be used as a procedural device or abused in an attempt to improve the actual terms of the United Kingdom’s membership.’
Now, you are saying that means we can only withdraw our article 50 notification with the agreement of the other 27 states and you might be right. However I read it slightly differently, particularly when taken in conjunction with the opinions of Jean Claude Piris and Lord Kerr, two of the main writers of the Article 50 clause. In International Law (indeed often in domestic Law) where the wording of a contract or rule is insufficiently clear, the intention or spirit underlying the Act, contract or law, becomes essential, does it not? In international treaties and resolutions the preamble or the debate surrounding and framing the legislation is known for its importance to judges. These gentlemen, who must know intimately the intention and spirit behind the Article 50 clause and would be probably the first opinions sought by the judges of the ECJ, believe we can simply change our mind and withdraw the application. That might cause a few grumbles of course, but other than that there is nothing the other 27 countries can do. You can leave, but you cannot be kicked out (unless you break your obligations in some significant way).
Barnier and the senior EU lawyers and negotiators will have looked at the treaty and formed a likely opinion. The very words ‘whereas a revocation of notification’ first and foremost indicates they know the notification can be withdrawn, thus ‘the United Kingdom’s membership’ continues.
The resolution, as you read it, which I accept is a reasonable interpretation, says we can, BUT ONLY WITH UNANIMOUS PERMISSION, withdraw our notification and carry on.
I think the resolution acknowledges we can withdraw our notification, they even want to us too, but they need to make it crystal clear this must be ONLY to carry on under exactly the same terms we have now, UNLESS agreed otherwise by all 27, because they must rule out this being simply a backdoor to getting our membership terms renegotiated. The EU are normally very careful about these things but they know, really, that the Article 50 leave process has not met their usual standards because they never really envisaged someone like the UK leaving. They actually thought it would be most likely Austria or another country reverting to a right wing dictatorship. The ECJ may not rule sufficiently quickly, so the resolution I think is designed to anticipate the likely ruling that we CAN withdraw Article 50, but formally box it in to the limits I've stated. The ECJ may not even be able to comment on any limits other than 'same terms as before' in any case, so this is just being smart about outlining and agreeing parameters and procedure between the 27 from the off.
If you think about it, the EU rebate requires unanimous agreement when the MFF is negotiated every 7 years, the entry of a new member requires unanimous agreement and major treaties require unanimous agreement. As you pointed out, the Walloons held up and could have scuppered the EU-Canada Trade deal.
When it comes to our exit agreement, this is only going to require agreement by something like 72% of the member states representing 65% of the overall population. So I think the EU want to be careful to shut down any chance that this is a backdoor tactic to get through any new deal that would effectively supercede the normal veto rights a country would have to ensure a major new agreement can't negatively impact them.
Basically, I think it is designed to confirm, as they expect the ECJ would rule, that the UK can withdraw notification but the ONLY option is back to exactly what have now, no special extra arrangement. That might sound obvious but with the EU I think they like to get it down on paper and formerly approved, not left to assumptions. |
