A call for the revocation of Article 50

By Phil Syrpis, University of Bristol

Whisper it gently, but a solution to the Brexit riddle seems to be coming into view. Westminster has yet to see it, but it will not be long now (famous last words…) before the reality becomes impossible to avoid. March 2019 will be upon us very soon. Unless *something* is agreed the UK will leave the EU on 29 March with no deal.

Developments in the EU

While the attention of the nation is focused on the travails of Prime Minister Theresa May – who on 12 December survived a no confidence vote from her own MPs by an uncomfortable margin of 200 to 117 – the most important developments have come from the European Union; the ruling of the European Court of Justice on the revocability of Article 50, and the EU’s ever clearer political statements that it will not countenance renegotiation.

First, on Monday, came the judgment of the CJEU in Wightman. The CJEU ruled on the unilateral revocability of Article 50. In a judgment which emphasised the sovereignty of the withdrawing Member State, the Court held that unilateral revocation is possible ‘in an unconditional and unequivocal manner’, after the State has taken the revocation decision ‘in accordance with its constitutional requirements’. It confirmed that ‘the purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State’. For fuller analysis of the judgment, see here, and, with added Taylor Swift, here.

Second, the Withdrawal Agreement and the accompanying Political Declaration on the Future Relationship have now been agreed. They represent the culmination of the Article 50 negotiations. I, with Clair Gammage, have analysed the Agreement here. In brief, we argue that the Agreement should be rejected by leavers and remainers alike. The deal has in some quarters been presented as the way to get Brexit over the line, or to put the issue to bed. It does nothing of the sort. Under the Withdrawal Agreement, we would be locked into a further cycle of negotiations with the EU, seeking to determine the nature of our future relationship. The difference is that the default would not be EU membership, or indeed no deal, but the backstop provisions.

The key point for now is that, after what were at times acrimonious negotiations, the withdrawal agreement has been reached. As far as the EU side is concerned, the deal is done. There will, according to the consistent messaging from the Council, the Commission, and the Governments of other Member States, be no renegotiation. As Donald Tusk put it this week, ‘we will not renegotiate the deal, including the backstop, but are ready to discuss how to facilitate UK ratification’. The Agreement is the end product of long negotiations by the EU, who have worked hard to reach a deal which accommodates, as far as possible, the UK government’s red lines. Of course, the EU accepts that much of the work relating to the future relationship is still to be done, but it has found a way to ensure orderly withdrawal: that the divorce bill will be paid, that the rights of citizens will be protected, and that there will be no hard border in Ireland.

The state of play in Westminster

The combination of the Court’s ruling, and the EU’s political decision not to countenance renegotiations, should focus the minds of MPs. There is little sign of that so far. What I term ‘renegotiation fantasies’ abound. Many of those who, with good reason, find fault with Theresa May’s deal, are suggesting that they are capable of articulating a better deal. One is entitled, indeed bound, to express some scepticism about these claims.

Take for example the Labour Party. To the extent that it is possible to discern its policy, it wants to negotiate a better ‘jobs first’ Brexit, with participation in ‘a’ customs union, ‘access to’ the single market and the ability to escape from EU state aid rules. There is no evidence that this is workable, that it commands strong popular support, or that the EU will agree to reopen negotiations at this time.

The same is true for some of those advocating for a ‘pivot’ to ‘Norway plus’. Among the advocates for ‘Norway plus’, many accept that it is only possible as a future relationship destination. They are therefore prepared to accept the Withdrawal Agreement (and the backstop), and are seeking a more definitive path to ‘Norway plus’ in the Political Declaration. Others though, want to renegotiate the Withdrawal Agreement, and ‘escape’ from the backstop via a commitment for the UK as a whole to align with EU single market (and customs union) rules. While this proposal may ultimately be workable, there is no evidence that it commands strong popular support, and, once again, no indication that there is the appetite on the EU side to renegotiate at this time.

Some argue that substantive renegotiation is possible, on the basis that the UK can buy time by extending Article 50. First, while the revocation of the notification is possible unilaterally, extension requires the unanimous agreement of the EU-27. Back in the summer, the indications were that the EU would only agree to extend Article 50 in the event of a substantial shift in UK politics (see here). Now that there is a Withdrawal Agreement, the EU’s position has hardened. There is little sign that the EU will, and little reason why the EU should, agree to extend Article 50, and reopen the negotiations, in order to allow the UK to refashion its Brexit offering. This, I believe, holds true, whether it is Theresa May who tries to plot a new course (see yesterday’s European Council Conclusions), another Conservative leader, or indeed a leader from any other political grouping.

The dawning reality is that options have narrowed. The choice facing the UK is one between the Withdrawal Agreement (perhaps with a tweaked Political Declaration signalling a clearer path to a particular future relationship, and/or fresh ‘assurances’ about the temporary nature of the backstop), no deal, and revocation of the Article 50 notification.

The efforts of ‘remainers’ have, thus far, been focused on trying to engineer a people’s vote to enable the people to break the Parliamentary logjam. I wrote in August explaining that while I had no democratic objection to putting the Brexit question to the people for a second time, I could not foresee the circumstances in which Parliament would choose to legislate for a people’s vote. I also gave an indication of the problems which there may be in framing the question. The people’s vote campaigners have done a lot to breathe life into ‘remain’, and deserve huge credit for that. But the focus on the people’s vote has also, for example within the Labour Party, acted as distraction, shifting attention away from the case for remain.

The mechanics of a people’s vote are, as for example shown here, complex, and controversial. The CJEU judgment confirms that ‘remain’ can readily be an option. But what about ‘leave’? Is Parliament willing to put the Withdrawal Agreement up against ‘remain’ in a people’s vote? Would there not be a case, given overwhelming Brexiter opposition to the Withdrawal Agreement, for including a no deal option? And of course, any people’s vote would require an extension to Article 50. While it seems likely that the EU would be prepared to grant an extension in order to enable a people’s vote to occur, it may impose some conditions (perhaps, for example, insisting that no deal is not on the ballot). Any extension beyond (at the latest) July would have implications for the elections to the European Parliament. These difficulties aside, there are also political obstacles. What incentive is there for supporters of Norway plus, or for the Labour Party, to campaign for, or even to endorse, a people’s vote in which the various possible outcomes are each a long way from their preferred solutions?

Once again, we come back to the stark choices. If the deal is to be rejected, the options are no deal, and revocation of the notification. No deal, variously badged as ‘managed no deal’ or a ‘WTO Brexit’, has strong support among Brexiters in Parliament, but, it seems, no chance of commanding majority support. It would lead to a hard border in Ireland, and, is widely predicted to result in economic chaos. This recent report from ‘UK in a Changing Europe’ makes for sobering reading.

Revoke and reconsider

The final option is one which is, as yet, little discussed. There is, following the Court’s judgment, no doubt that it is legally possible. Parliament could, simply, pass legislation which instructs the Government to revoke Article 50. This would, of course, appeal to remainers. I argue that it may also appeal to those leavers disenchanted by the available leave options.

The key fact is this. The Government has, quite simply, not managed to come up with a vision of Brexit which is able to command sufficient support. Brexiters have disowned the Withdrawal Agreement. Support for no deal is also very low. Parliament, in triggering Article 50 in March 2017, allowed the Government to pursue and deliver Brexit. The Government has not proved up to the task. It interpreted the will of the people in a very particular way. It did not reach out and try to build a consensus, either in Westminster, or in the devolved assemblies, or among the public at large. Instead it has sought to marginalise Parliament. It has demonised opposition. I could go on. In short, it has, in spectacular fashion, failed to deliver.

Parliament should feel under no obligation to accept the Withdrawal Agreement. It can, legitimately, vote to revoke Article 50, and retain the UK’s status as an EU Member State. The result of revocation is that the UK will be able to reconsider its position on Brexit. The Court’s judgment insists that revocation is unconditional and unequivocal. The Court emphasised the ability of a Member State to change its mind. My view is that were the UK to revoke the notice, there would be no appetite to restart the process. It would, I believe, be far better to focus on rebuilding its relations with the EU, and on seeking to mend the divided UK. But, it is entirely possible that, for example after the next General Election, a case will be made for a particular form of Brexit. The Labour Party may seek to argue for its own ‘better Brexit’. Others may coalesce around ‘Norway plus’. Were any particular option to command sufficient democratic support, it would be possible for the UK to trigger Article 50 again, and, having learned the lessons of the last years, begin to negotiate again.

The country finds itself in an extremely difficult situation. This Government believes that its duty is to deliver on the will of the people. But, the results of its efforts – the Withdrawal Agreement and the Political Declaration on the Future Relationship – fall far short of the claims which were made for Brexit in 2016. Parliament seems not to be prepared to endorse either the Agreement, or no deal. There is no time, or appetite on the EU side, for renegotiation. A people’s vote is fraught with difficulty. Might it be that the simplest option – Parliamentary revocation of the Article 50 notification – is, from a range of different perspectives, also the best?