The case for revoking the A50 notification

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School)

This blog is written after the European Council conclusions were agreed yesterday, on 21 March, on the assumption, which is widely shared, that the EU’s extension plan is accepted by the UK.  It is in two parts. In the first, I explain the nature of the choices ahead. In the second, I seek to make a positive case for revoking the A50 notification.

The choices ahead

As has been the case for a while now, there are four possible outcomes to the Brexit process.

1. The UK leaves the EU under the Withdrawal Agreement
2. The UK leaves the EU with no deal
3. The UK leaves the EU under a different deal
4. The UK does not leave the EU

The first option is Theresa May’s preferred outcome: that we leave the EU under the terms set by the Withdrawal Agreement. Under the terms of the conclusions, the European Council agreed to an extension until 22 May ‘provided the withdrawal agreement is approved by the House of Commons next week’. The European Council reiterates that there can be no reopening of the Withdrawal Agreement, adding that ‘any unilateral comment, statement or other act should be compatible with the letter and the spirit of the Withdrawal Agreement’. This looks very much like the ‘technical extension’ Theresa May asked for in her letter of 20 March, with the 22 May date chosen so that the UK leaves the EU before the elections to the European Parliament occur, and with a clear indication that no sugar-coating of the backstop will be tolerated.

If, as seems more likely, the Withdrawal Agreement is rejected for a third time in the House of Commons next week, the European Council has agreed to an extension until 12 April ‘and expects the United Kingdom to indicate a way forward before this date for consideration in the European Council’. The effect of this is simply to defer the moment of decision – from 29 March to 12 April. If the UK accepts this proposal, it means that the UK will no longer be leaving the EU on 29 March; and as a result, the UK will need to make changes to domestic law to amend exit day. The UK will have a narrow window of opportunity to decide on a way forward.  It could decide to leave the EU with no deal, which remains the default outcome, or it could decide to revoke the Article 50 notification. Alternatively, it could decide, before 12 April, to request a longer extension. We do not know how an extension request would fare. It seems clear that the EU will, as it has consistently said, assess the reasons for such an extension, and seek to determine whether they provide a credible path forward. It is almost certain that any extension agreed in April will involve provision for UK participation in the forthcoming elections to the European Parliament.

The case for revoking the Article 50 notification

The effect of the European Council conclusions is to give the UK an extra two weeks to decide how best to take Brexit forward. It is no more than a small window of opportunity. The pressure on MPs to find a path forward remains intense.

In what follows I continue to make the case, which I first made in December 2018, for revoking Article 50; not as a last resort, but as the best solution to the situation in which the UK now finds itself. The case for revoke has three strands. First, each of the alternatives is hugely problematic. Second, the objections to revoke, based on the fact that it represents a betrayal of the will of the people, are hollow. And third, the consequences of revoke are largely misunderstood.

The problems associated with the alternatives

The simplest choice would be for MPs to approve the Withdrawal Agreement, and, as the Prime Minister might put it, to ‘deliver Brexit’. The agreement, reached in November 2018, is the product of the 2-year Article 50 negotiations. It is – no more or less – a withdrawal agreement, settling the divorce bill, providing protection for EU citizens in the UK and UK citizens in the EU, and seeking to guarantee, via the controversial backstop, that there will be no hard border in Ireland. The terms of the future relationship are addressed in an aspirational political declaration, with negotiations on the terms of that relationship set to start as soon as the UK has formally left the EU. Clair Gammage and I, writing on this blog in November 2018, explain why the withdrawal agreement should satisfy neither leavers nor remainers. Since then, the Agreement has been rejected in the House of Commons in January 2019 by a historic margin of 230 votes. It was rejected again earlier this month, this time by 149 votes. All the signs are that, even if, as seems likely, Speaker Bercow is prepared to allow a third ‘meaningful vote’ next week, it will be rejected again. Were the agreement to be approved, the Withdrawal Agreement Bill would then have to pass through Parliament. The scene would then be set for negotiations with the EU relating to the future relationship, in which the hard questions concerning the nature of the UK’s relationship with the EU would finally have to be confronted.

If the Withdrawal Agreement is rejected, the default is no deal. The Government’s own forecasts suggest that no deal would be chaotic and that it would result in a 9% fall in the UK’s GDP. Various preparations for no deal have been made (see here), and billions of pounds have been spent, by the Government and business, but there is no sense that the UK is ready for such a disruptive outcome. Citizens and businesses are crying out for certainty; no deal provides just the opposite. In any event, votes on the various amendments which have been tabled to the Government’s motions in the last months, indicate that there is a large majority in the House of Commons against no deal. The onus on those seeking to avoid such an outcome is either to pass the Withdrawal Agreement, or to point towards an alternative way forward.

The European Council conclusions give Parliament two or three weeks to make a reasoned request for a longer extension which indicates a way forward which the EU will then assess. The main contenders are that this House of Commons calls for a different way forward (perhaps, following a series of ‘indicative votes’, a path based on the existing Withdrawal Agreement and a refashioned Political Declaration which commits the UK more strongly to a close alignment with the EU); that a General Election is called, to enable a differently constituted House of Commons to chart a different way forward; and that provision is made for a people’s vote, allowing a choice to be made by the people between ‘remain’ and a version of ‘leave’ (most likely the Withdrawal Agreement, perhaps  with an amended political declaration; but also possibly allowing a choice to be made between remain and a menu of leave options, perhaps including no deal).

Many in Parliament feel that the Government’s stubborn approach has denied them the opportunity to make a case for alternative versions of Brexit. And it is possible, though by no means inevitable, that a different version of Brexit would command greater support than the current Withdrawal Agreement. The problem here is time. The UK has had the opportunity to explore what Brexit means since 2016. But, the debate about the pros and cons of proximity with the EU and alignment with its regulatory orbit has quite simply not occurred. Worse than that, the inevitable trade-offs have barely been recognised. Too many still think that Brexit is a straightforward exercise. The idea that MPs can easily alight on a path forward, and that any such plan forward will have popular support – so that the UK will be able to demonstrate to the EU before 12 April that the way forward is credible – appears unduly optimistic.

There are also calls for a people’s vote, for example, under the Kyle/Wilson amendment, explained here. It is a very different path forward to the one suggested above. While the first is a search for a better Brexit, Kyle/Wilson results in a choice between the Withdrawal Agreement and remain. It allows the people, with more information than was available in 2016, to choose between remain and a concrete version of leave; but it provides little or nothing to the many MPs (in both the Conservative and Labour parties) who are committed to Brexit but who oppose the Withdrawal Agreement. I fear that it is embraced far too easily by many ‘remainers’, who appear to overlook the difficulties involved in framing the leave option.  As I argued in September 2018, the people’s vote is not the answer to the Brexit riddle. The greater the opposition (in particular from supporters of Brexit) to the Withdrawal Agreement, and the more there is a sense that a better Brexit can still be found, the weaker the legitimacy claim of the people’s vote becomes.

A betrayal of the will of the people

Once the Withdrawal Agreement and no deal are both rejected, and the obstacles facing calls for a new path forward (whether through the fashioning of a different Brexit deal or via the people’s vote) are acknowledged, attention turns towards the revocation of the Article 50 notification. I have long been surprised that it has barely featured in the discussions of the credible options. But gradually, as alternatives have foundered, it has begun to attract attention. Suddenly, this week, a petition calling for Article 50 to be revoked has attracted (at the time of writing) over 3 million signatures; a simply staggering number.

There is no doubt that revoke faces strong opposition. The strongest objections focus on the undeniable fact that revoke would breach the referendum mandate, and that it would amount to a clear, and unconscionable, disregard of the will of the people. The idea that the (advisory) referendum amounted to a mandate from the people to Parliament to ‘deliver Brexit’ may be legally absurd, but it has a certain moral force. The problem with the moral argument is that the will of the people does not provide any path forward. In 2016, 52% voted to leave, but had very different ideas about how to replace the UK’s existing relationship with the EU. As a cursory look at the debates over the last months amply demonstrates, the disagreements are profound. The Government argues that the Withdrawal Agreement represents the will of the people. The European Research Group argue that the Withdrawal Agreement represents a betrayal of the will of the people, and argue instead for no deal, or some version of ‘managed no deal’, such as the so-called Malthouse Compromise. From a very different political perspective, others argue for Norway plus (or Common Market 2.0), or for a permanent customs union and for membership of, or privileged access to, the single market. There is no doubt that there is a huge public demand for MPs to ‘get on with it’, but, if one probes a little, one quickly sees that the demand is for MPs to move, simultaneously, in a number of different directions. A majority of people in 2016 voted for an abstract leave over remain, but there is no concrete leave towards which Parliament was directed to chart a path.

Some seek to supplement arguments based on the 2016 referendum with arguments based on the result of the 2017 general election, in which both the Labour and Conservative Parties committed to deliver Brexit in their manifestos. Once again though, while they were committed to Brexit, they were not committed to the same version of Brexit. We are where we are today because they have been unable to make common ground, and agree a concrete path forward, which is able to attract majority support in the House of Commons.

All the while, there is growing evidence that the attempt to deliver Brexit is causing huge problems. The prevailing uncertainty has contributed towards business decisions to leave the UK. The very fabric of the constitution is being damaged – within Westminster, and as between Westminster and the devolved assemblies. And opinion polls suggest that there is now a small – but growing – majority of the people who are in favour of remaining in the EU.

The consequences of revoke

The Wightman case made it clear that the withdrawing state has a unilateral, sovereign, right to revoke the Article 50 notification (I first raised the issue here in the immediate aftermath of the referendum). In order to comply with EU law, revocation has to be ‘unconditional and unequivocal’ and in accordance with the UK’s constitutional requirements. Revocation brings the Brexit process to an end. The UK remains an EU member state, with rights and obligations intact. As an EU member state, it retains the right, with a fresh democratic mandate, to trigger Article 50 again.

There is no doubt that any decision to revoke – and this is what makes it difficult for many MPs to countenance – would be the result of a profound failure of the political class to make sense of, and to seek to implement, the 2016 referendum result. But, as indicated above, it does not amount to a betrayal of the will of the people. It is better seen as a failure, in trying political circumstances, to grapple effectively with the huge challenge of seeking to deliver Brexit, seeking to marry continuity with change and to reconcile a huge number of contradictory voices.

It is, of course, very difficult to predict how a decision by Parliament to instruct the Prime Minister to revoke will be received. Many on the remain side will celebrate the result as a huge ‘win’. But, for better or worse, revoke will not herald the end of the Brexit debate. It is difficult to imagine the Government surviving the failure of the third meaningful vote, and the (putative) subsequent decision by MPs to instruct the PM to revoke the Article 50 notification. So, a general election is very likely to follow. Those who want various versions of leave will put their case. It is not impossible that a fresh democratic mandate to leave will emerge.

The key point, is that revoke opens up a broad space in which the UK’s relationship with the EU can be reconsidered. Of course, that would also have to occur if the Withdrawal Agreement is passed, but in the guise of a debate on the future relationship, framed by the Withdrawal Agreement and the commitments made relating to the Irish border. It could also occur in a long extension, but only if a way forward is clearly signalled before 12 April, and only within the terms (to be agreed with the EU-27) of the second extension agreement.

The new 12 April deadline affords the UK only a small window of opportunity. It allows time for MPs to debate revocation, and to adopt the legislation which is almost certainly needed to enable revocation to occur (see here). Revoke is, it seems to me, an appropriate conclusion to a Brexit process which has been badly mismanaged, and which, on any sensible measure, has failed. It enables the UK, and politics within the UK, to reset. It provides the opportunity for the debate which we could and should have been having since 2016 to start to occur, and for the divisions in the UK can begin to heal. The challenges are immense. Revoke and reconsider provides the best path towards their resolution.