Once the UK gives notice under Article 50 to withdraw from the European Union, can it unilaterally withdraw such notice or is it locked into inevitable Brexit? Article 50 (1-3) states
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the 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.
3. 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.
A natural interpretation of those words indicates that once notification is given, Brexit is inevitable and the Member State cannot unilaterally withdraw its notification. Four reasons may be given. First, and most importantly. the words of the provision make no mention of the Member State having any such power of withdrawal. Second, the provision does allow for a delay in execution, but requires unanimous agreement of Member States to do so. This may be read as excluding both the stopping of execution, and a Member State having the unilateral power of choice. Third, as the institutions of the European Union, and other Member States, will have begun the process of adjusting to such withdrawal, such a unilateral power in the Member State may be thought unfair. The clear tenor of Article 50 is to give the balance of power to the Union, and not the withdrawing Member State. Fourth, the alternative interpretation leads to ridiculous results. Could a member state give notification, withdraw it one day before the expiry of the two year limit, and re-start the entire process on the following day?
The final word on the meaning of EU law is that of the Court of Justice of the European Union. It has been known to take what our civilian friends call a “teleological” approach to interpretation. Politely this means that it will take a purposive approach and may sometimes depart from the plain meaning of words. Impolitely, it sometimes cheats. If it were faced with the question of maintaining the integrity of a the Union if a repentant UK somewhat improbably sought to withdraw its notification, it is not impossible that it could read the words in a way to permit it to do so. Donald Tusk has suggested that that is indeed the position.
One point to note about the above is the dissonance between the law and predicting what the CJEU will do. My firm view, despite the eminence of those I disagree with, is that the words of Article 50, and hence the law itself, are quite clear. The uncertainty concerns whether the CJEU will depart from the meaning of the words. Oliver Wendell Holmes In The Path of Law has been read, perhaps unfairly, as advocating the prediction theory of law: law is just our prediction of what the judges will decide. I, by contrast, consider the law, and our predictions as to what judges will do, to be different questions. The law is clear, what the judges may in the end do is not.
Do we currently care?
Jolyon Maugham QC, who is fast becoming our most important informed commentator on tax matters, is also a passionate Remainer (as, somewhat to my surprise, I have discovered that I am). Currently before the courts is litigation concerning whether the government can give notice of withdrawal under Article 50 without Parliamentary approval. He argues that it is possible that this could turn upon the reversibility of such notification. This is important because if it does, a reference to the Court of Justice will be necessary to authoritatively determine this question.
The Court of Justice has many qualities. Swiftness is not among them. If such a referral were made it could take many months to obtain a ruling, delaying the giving of notice and postponing Brexit. Who knows whether, as the main opposition to Brexit comes from the irresistible economic gravity of the market, this could provide room for a change of course?
For good or ill, this seems very unlikely. It will be recalled that the claimant’s argument is that the government cannot give notice without Parliament as to do so would be to overturn various statutory rights. Can the correctness of this argument turn upon the reversibility of notice?
If, as the government claims, no statutory rights are overturned by the Article 50 process, then the issue of reversibility is irrelevant. As nothing is affected, it doesn’t matter. It is for this reason, I would suggest, that the government has not address the issue of reversibility. It cannot arise as a question if they are right.
If statutory rights would be overturned by Brexit, does this mean that the reversibility of notice becomes a live issue? As any notice would, inevitably, be given by the government, its ability to reverse this decision would still leave the choice whether to overturn such statutory rights in its power. If the claimant’s argument is correct then we would still require statutory authorisation even if the government could reverse itself. Reversibility cannot alter the answer.
So, reversibility cannot be determinative, and so no referral to the Court of Justice is required.