Brexit: government says an article 50 notification is irrevocable and unconditional

In its formal legal submission to the Supreme Court, the British government states categorically that a notification of intention to withdraw from the EU will be irrevocable, and no conditions may be attached to it. This can only mean that under article 50, once the trigger is pulled in just three months’ time, we’re expelled from the EU two years later at most, even if the agreement with the rest of the EU negotiated following the trigger is then rejected by parliament or in a referendum.  This sobering reality seems to have been missed by those well-meaning commentators and politicians calling for the terms of the eventual agreement to be submitted for approval to parliament or to the electorate before it is finalised.

This is my letter to the Guardian on its website (but not in the print edition) on 13 December 2016 :

You say the “urgent job” is to press for a soft Brexit, but that implies premature defeatism about the possibility of averting Brexit altogether, a challenging but still not impossible task (Editorial, 3 December). The demand for parliament or the electorate to have the final say on any agreement with the EU27 (the rest of the EU) negotiated after article 50 has been triggered is incompatible with article 50. The government’s summary of its legal case in the supreme court says “an article 50 notification is irrevocable and cannot be given conditionally.”
So when the two years for negotiations are up, we’ll be out of the EU, either with an obviously unpalatable agreement, or, if our government or parliament rejects whatever agreement’s on offer, without any agreement at all – the worst possible outcome. There will be no option after the trigger to reject any agreement and remain in the EU under the existing terms.
“The choice between hard and soft Brexit will be made for us by the EU27 once article 50 is triggered. The task now is to convince public opinion that on the emerging evidence, mostly unavailable at the time of the referendum, any kind of achievable Brexit will be worse for ordinary working Britons than remaining in the EU and urgently tackling the grievances that led millions to vote to leave. Once Theresa May triggers article 50, it will be too late. We need to do everything possible to ensure that the trigger is postponed long enough for the British people to exercise their democratic right to change their minds and call off Brexit altogether.
Brian Barder
London
https://www.theguardian.com/law/2016/dec/12/brexit-the-judiciary-and-the-royal-prerogative,
Guardian website, 13 Dec 2016

Brian

3 Responses

  1. ObiterJ says:

    Basically, nobody connected with the Brexit litigation wanted to make a reference to the Court of Justice of the EU on the revocability question.   The whole case has proceeded – at enormous costs – on an assumption of non-revocability which may prove to be incorrect.  (Lord Kerr who drafted Article 50 thinks notice is revocable but I am at a loss to see why this rather obvious point is not addressed in Art 50 itself).  One might expect that any government negotiating team would want to know the answer before entering into formal negotiations.

  2. christopher watts says:

    Wasn’t conditional notification being considered by the ECJ over a case bought in the RoI?

  3. Brian says:

    In reply to Christopher: Thank you. I don’t think the Irish case is before the European Court of Justice, although it might end up there. I don’t know whether it touches on the possibility of an article 50 notification being conditional, although I believe it does concern the question of irrevocability. The British government has formally notified the UK Supreme Court that in its considered (legal) opinion an A50 notification cannot be revoked and may not have conditions attached to it. (Why HMG should think it sensible to limit its own future freedom of manoeuvre in this way challenges comprehension.)

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