Could the British government un-trigger Article 50?

Question

At some point, probably early in 2017, the British Prime Minster is likely to trigger Article 50. A number of expert commentators and a large proportion of the British public still believe that it is a mistake for the UK to leave the EU. If it becomes obvious within the two-year countdown that triggering Article 50 was a bad idea, would it be possible to 'retract' a declaration under Article 50 and remain within the EU or would the UK be treated as a new applicant? How would this depend on whether this was supported by other EU members or not?

Related:

What is Article 50?

What are the UK's "constitutional requirements" for Article 50 notification of withdrawal from EU?

Could the UK re-join EU after leaving?

Answer 1

In a recent update to this issue, the European Court of Justice's Advocate General has issued a non-binding opinion that a country can revoke Article 50 unilaterally.

According to BBC News:

In a written statement, the ECJ said Mr Campos Sanchez-Bordona's opinion was that if a country decided to leave the EU, it should also have the power to change its mind during the two-year exit process specified in Article 50 of the EU treaty.

And it should be able to do so without needing the consent of the other 27 member states.

The official press release from the Court of Justice of the European Union says:

Advocate General Campos Sánchez-Bordona proposes that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU

That possibility continues to exist until such time as the withdrawal agreement is formally concluded.

On the 10th Of December 2018, this position was confirmed by the ECJ.

The court concluded that any EU member state can revoke the article 50 process without needing approval from every other member state, in an emergency judgment timed to coincide with Tuesday’s critical Commons vote on Theresa May’s Brexit deal.

It said: “The United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU.”

Answer 2

There is no definitive answer to this question and it's not even clear if it is political (to be decided by the European Council) or a legal question (to be decided by the European Court of Justice). Probably both in reality.

Let's say there was a snap general election in the UK and a coalition of pro-Remain parties became the Government with Nick Clegg as Prime Minister. PM Clegg then lays a bill before Parliament to repeal the EU (Notification of Withdrawal) Bill. Once that is passed he then writes to the Commission notifying them that Britain is withdrawing its Article 50 notification.

There is no provision for withdrawal in Article 50 itself however it does say “Any member state may decide to withdraw from the union in accordance with its own constitutional requirements.”. At this stage clearly the UK constitutional requirements are not met and therefore it would seem that the article 50 notification is null and void.

After that the Council and Commission may decide to treat the Article 50 notice as never having been given and proceed on that basis (likely outcome I would think). Alternatively they could decide that the notice is still valid and insist the UK leave (very unlikely).

Regardless of what the Council and Commission decide an aggrieved party could raise a Court action to challenge the decision and to insist that the UK has to leave the two years after notice was given. The likelihood of someone raising that action is very high, however I doubt it would be successful nevertheless it would surely consume many hours of billable time for the lawyers!

Bottom line - anyone who tells you there is a definitive answer to this is wrong!

Answer 3

Article 50 is only 250 words, and has no provisions for canceling a request once issued.

Once Article 50 is formally triggered, by a Head of Government (Prime Minister Theresa May) notifying the European Council that it is invoking Article 50, there is no provision written to withdraw or cancel that notification.

Upon invoking Article 50, a 2 year clock begins tolling. If terms of an exit have not been successfully negotiated by the end of 2 years, the member state is simply "kicked out". All benefits, agreements, treaties, terms of EU membership are simply canceled.

Sources:

http://www.theguardian.com/politics/2016/jun/25/article-50-brexit-debate-britain-eu

http://openeurope.org.uk/today/blog/the-mechanics-of-leaving-the-eu-explaining-article-50/

https://en.wikipedia.org/wiki/Withdrawal_from_the_European_Union

Answer 4

I do not agree with the answer which says it is unclear whether it would be a political or a legal issue. Unless someone can provide evidence to the contrary, I believe that it is certainly a legal issue, and one that the European courts have jurisdiction over. Whether or not an Article 50 notice is revocable is uncertain, but whilst I personally see compelling reasons for it not being revocable, I haven't actually seen any reasoned arguments on the other side, other than politicians and other commentators giving their (unsubstantiated) opinions. If anyone has access to any concrete legal arguments for a notice being revocable, it would be great to post them as answers here.

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The hierarchy of laws in the EU is essentially this:

1. EU primary legislation: Treaties (TEU and TFEU)
2. EU secondary legislation: Regulations, Directives, Decisions
3. Member State law

A reasonable approximation to this exists in the USA where you have the Constitution (~EU primary legislation), federal law (~EU secondary legislation) and state law (~Member State law).

In general, each level in the hierarchy takes precedent over the levels below it, although the rules of enforcing EU law in a Member State are complicated (and I won't go into them here).

Article 50 is found in the TEU and as such is at the top of the hierarchy. The treaties define all aspects of how the EU operates and what powers it has. An EU institution such as the Council or the Commission exists, and has powers, because of the treaties. For that reason, unless the treaties specifically give jurisdiction to an EU institution to determine whether or not an Article 50 notice is revocable, then they do not have that jurisdiction, and it falls to the courts. They will make their decision in the same way that they make all decisions: by interpreting the law (in this case, the treaties). To do that they'll be assisted by various things such as previous cases, the purpose of the law (i.e. the intention of the drafters), principles of interpretation, etc.

The relevant paragraphs of Article 50 for our purposes are 1 - 3:

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. [rest of paragraph cut].
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.

It has been argued in another answer that a future government could hypothetically repeal the European Union (Notification of Withdrawal) Act 2017 and that this would make the already issued notification fall foul of Article 50(1) as the "constitutional requirements" wouldn't be met. Paragraph 1 of that act states:

The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

The Act received Royal Assent on 16th March 2017 and the UK notified the Council on 29th March 2017. Since the Act hadn't been repealed beforehand, the Prime Minister was acting lawfully when she submitted that notification. Repealing the Act would merely remove the power to notify from the Prime Minister going forward.

In any case, even if the Prime Minister's past notification could somehow be retrospectively made unlawful, it won't have an effect in EU law. Article 50(1) requires that the decision to withdraw be made "in accordance with [the Member State's] own constitutional requirements". Clearly that requirement was satisfied when the decision to withdraw was made. The actual notification itself is dealt with in 50(2) which says nothing about constitutional requirements.

Moving on, there is currently legal uncertainty as to whether or not a notice can be withdrawn, and there is plenty of legal opinion on both sides of the debate. We can't know for sure unless a case comes before the EU courts.

However, in my opinion, there are serious obstacles in the way of a notice being revocable. It is often said that Article 50 is "silent" on withdrawal of a notice. I do not believe this to be the case. I believe it very clearly rules out such a possibility.

Article 50(3) provides:

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.

It seems clear to me that the word "unless" (emphasised by me above) was intended by the drafters to cover the circumstances under which the rule which comes before it can be ignored. There is a principle of statutory interpretation, "the express mention of one thing excludes all others" (in latin: Expressio unius est exclusio alterius). The drafters of Article 50 have provided exactly one method of avoiding EU withdrawal 2 years following notification (in the absence of a withdrawal agreement) after the word "unless": unanimous agreement of the Council to extend the period for reaching agreement. Or to put it another way, it unambiguously states that unless there is a unanimously agreed extension, then the Member State will no longer be in the EU either after 2 years from notification, or in accordance with the withdrawal agreement. If the drafters had intended for a notice to be revocable, then they had their chance to provide for this after the word "unless". They didn't, so we must assume that it wasn't intended for this to be possible.

Another compelling argument is the actual provision for extending the 2 year period in which agreement must be reached, which requires unanimous agreement of the other Member States via the Council. Allowing a notice to be withdrawn would essentially make a nonsense of this provision, as a Member State wanting to extend beyond 2 years could simply withdraw their notice and resubmit it the next day, thus gaining an additional 2 years without any agreement from the other Member States. It can't have been the drafters' intention to allow this requirement to be so easily circumvented.

EDIT:

I thought it worth mentioning another couple of possibilities:

1. The EU treaties could be modified to specifically allow the notice to be withdrawn. However, this would require unanimous agreement of all Member States and historically has been difficult to achieve, and slow when it has been achieved. I suppose one could imagine a scenario where the Council agrees to extend the agreement period using Article 50(3), to allow sufficient time for Treaty change.

2. The withdrawal agreement could be finalised simultaneously to an Article 49 agreement. Article 49 describes how a new state may join the EU. If the Article 49 agreement was worded to provide for the UK retaining the same membership terms as it has now, then the effect would be the same as if notice was withdrawn. The requirements for achieving an Article 49 agreement are even more stringent than for achieving an Article 50(3) extension: unanimous agreement of the Council, absolute majority of the European Parliament, and ratification by each Member State.

Answer 5

There is now an official answer to this question.

Specifically, the European Court of Justice has stated that the UK parliament (not HM Government), can unilaterally revoke Article 50 as long as withdrawal has not already occurred.

Answer 6

According to the (British!) politician who drafted Article 50 it is revocable during the two year period. I also read something which I can't find the link to that says that the EU leadership believes that it is revocable as well.

I'm inclined to agree with Alan Dev that it might not be as definitive as that, however, Lord Kerrs opinion should carry some weight.

As a side note, if the EU negotiators believe that the UK can be bullied into revoking article 50 by making any negotiated settlement as damaging and unpalatable as possible, the next two years could be interesting.

Answer 7

The answer is extremely simple. Given an unanimous agreement of all EU members pretty much anything is possible - they could even decide to admit New Zealand into the Union if they really wanted to. There is of course the European Court of Justice but it is pretty much helpless should the Member States agree on something in full concert. Remember that states don't follow the law as it is seen by a common person - they can pretty much rewrite it as they go with no one to stop them.

However should there be at least one state that disagrees with the UK coming back (say, Spain wants to take back Gibraltar as a token of gratitude for casting its vote) then nobody really knows. The ECJ could rule one way or the other. The European Commission might come up with a clever legalese trick to keep them. At this point this is mere speculation that is reliant on the attitudes of 28 member state governments at some point in the future rather than on what's written in the books.

Answer 8

The short answer is: not possible

British media has sometimes claimed that UK could unilaterally cancel the Brexit process even after triggering Article 50.

For example, this article in The Guardian (dated October 7th, 2017) says that:

The prominent lawyer Jessica Simor QC, from Matrix chambers, has written to May asking her to release the legal advice under the Freedom of Information Act. Simor says she has been told by “two good sources” that the prime minister has been advised “that the article 50 notification can be withdrawn by the UK at any time before 29 March 2019 resulting in the UK remaining in the EU on its current favourable terms.

This sort of stories however are unsubstantiated as there is no information on the authority behind the claims that Britain can unilaterally cancel the Article 50 process.

The European Union official Q&A page on Article 50 has, however, this to say about the matter (emphasis added):

Once triggered, can Article 50 be revoked?

It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification.

Also further up on the same page the following question is answered:

When does the United Kingdom cease to be a member of the European Union?

The EU Treaties cease to apply to the United Kingdom from the date of entry into force of the agreement, or within 2 years of the notification of withdrawal, in case of no agreement. The [European Union] Council may decide to extend that period by unanimity.

So although British media can say what they want, the reality is that there is no legal recourse for UK to unilaterlly cancel the withdrawal process.

Anything else is just wishful thinking.