There is considerable debate over Article 50 of the Treaty on European Union (TEU or the Lisbon Treaty), which provides a mechanism for a Member State to leave the EU. The debate encompasses issues including whether, in the light of the June 2016 referendum, the UK Government has the authority, without additional sanction from Parliament, to serve notice under Article 50 TEU, and when such a notice should be served. Once the UK notifies the European Council of its intention to withdraw, the clock begins ticking on negotiations over an agreement setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the EU. The Treaties cease to apply to the UK upon entry into force of the Withdrawal Agreement, or automatically two years after its notification if no agreement is reached, unless all parties agree to extend this period.
An issue of potentially great significance in the debate is whether, once given, the UK’s notification of withdrawal under Article 50 could itself be withdrawn. That is, could the UK serve notice under Article 50 but later change its mind and revoke its notice?
Why is this important?
If the UK could serve notice of its intention to withdraw from the EU in the knowledge that, before concluding a withdrawal agreement with the EU (which requires the approval of 20 out of the 27 Member States and of the European Parliament), it could take that notice back, the whole dynamic of the withdrawal process could be altered. For instance, the issue around when the UK should serve notice under Article 50 would take on a different perspective if the notice could be withdrawn.
A legal perspective
As we become more familiar with the untested process for leaving the EU, it becomes clear that the significance of Article 50 is not only in what says but also in what it doesn’t say.
Article 50 makes no provision for a Member State to revoke a notification of its intention to withdraw from the EU. Nor does it prohibit specifically such a course of action. In many respects it is the converse of how a state accedes to the EU under Article 49 (in relation to which there is precedent for withdrawing from the accession process after political change in the applicant country, despite Article 49 not providing for withdrawal), which would be the only way the UK would be able to re-join the EU once it left. The fact that revocation of a notice is not addressed and that the terms of Article 50 set out a framework only for withdrawal might suggest that a Member State cannot change its mind once it has served notice.
However, would it be sensible to deny the UK from remaining in the EU simply because there is no specific Treaty procedure providing for revocation of notice? What if, over the next couple of years, there is a general election in the UK which returns a Government with a “Remain” mandate that wishes to halt the exit process - would it be sensible to require the UK to leave the EU only to reapply for membership some time later pursuant to Article 49? Indeed some in the EU would not only deem the UK remaining to be entirely sensible but also welcome such a volte-face given the potential consequences of other Member States (particularly the Visegrad Four) wishing to leave following a UK exit. Further, it may be concluded that, whilst Article 50 is silent on the matter of revocation, this should not necessarily be taken to mean that a change of direction would be illegal under EU law (as long as the CJEU was convinced that the switch was in accordance with UK constitutional requirements, as it should surely be considered following a change of Government that was elected on a “Remain” mandate).
Clearly the UK Parliament has been giving this issue some thought. A House of Commons Library Briefing specifically addresses the issue of whether an Article 50 notification could be withdrawn. It refers to evidence given to the House of Lords EU Committee on the subject. Without reaching any conclusions, it appears that, notwithstanding the absence of specific provision in Article 50 for withdrawing a withdrawal notification, there is support for the idea that, legally, the UK could change its mind before withdrawal from the EU and remain in after all. However, ultimately the politics of the situation could not be ignored (in particular, the referendum result and, if held, the outcome of a second Scottish referendum) and potentially a change of Government would be required to justify such a course of action or some other event such that the switch could be said to be constitutional. Any withdrawal from the Article 50 process would presumably leave the UK in its pre-notification position as regards the terms of its relationship with the EU, that is it would be unlikely that the UK would have any kind of new deal with the EU post withdrawal of its notification. Also, unanimity amongst Member States permitting the UK to remain would likely be necessary to enable this.
Although it might appear that the issue of the UK revoking an article 50 notification will only become relevant if and when such a notification is made, an understanding of whether such a notification could be revoked may be highly relevant as to whether and when the UK in fact gives such a notification. Ultimately, if Article 50 is the only legal way for the UK to secede and deal with the continuing uncertainty which over time may harm the UK’s interests, shouldn’t the UK get on and pull the trigger, in the knowledge that in doing so it could possibly be withdrawn if, during the period of negotiation that follows, it is shown to be in the UK’s interest to do so? The longer the new British Prime Minister delays invoking Article 50, the more Europe’s political and constitutional crisis escalates. Could it be that serving the Article 50 notice sooner rather than later is a win-win situation?