Sunday 13 November 2016

Is Article 50 reversible?

It is being reported that the government are considering a change in the arguments they will make in their appeal to the Supreme Court to overturn the High Court ruling that parliament must vote on the triggering of Lisbon Article 50. The reported change sounds highly technical but it has potentially far-reaching implications.

At the High Court case, both sides accepted as common ground that, once triggered, Article 50 was irreversible. This was very significant, because if that was so then, the High Court ruled, it would inevitably lead to the repeal of the 1972 European Communities Act. Since only parliament can revoke that which it has done, then only parliament could authorise that which would inevitably lead to that outcome. It is now being reported that the government is considering not accepting this is as common ground, and instead arguing that the Article 50 process is reversible, and that it would subsequently be possible not to go through with leaving the EU. If so, this would undercut one of the main reasons for the High Court ruling and might allow the government to win its appeal.

If this is indeed what the government end up arguing, it will have several consequences. First and foremost, it makes it likely that the Supreme Court will seek advice from the European Court of Justice (ECJ), not to make a judgment about this case (the ECJ has no jurisdiction to do so) but about whether on a point of EU Law Article 50 is or is not reversible. The Supreme Court could ask the ECJ this question even if both parties still accepted it as common ground that A50 was irreversible (as could the High Court have done, had it wished). But it becomes much more likely that they will do so is it is not accepted as common ground (although it is in their power to take their own view on reversibility that might lead to subsequent problems and even legal action if it turned out not to be true once A50 was invoked).

If the Supreme Court does ask the ECJ for advice it will certainly lead to outrage from Brexiters, who will regard it as interference in UK affairs (even though, as noted, it would not be an ECJ ruling, just clarification of the EU process which, after all, has to be followed if the Brexiters wish to leave the EU). It would also make it highly unlikely that the government’s timetable for triggering A50 by the end of March 2017 would be possible, because the ECJ would take some time to give its advice and until it did the Supreme Court could not give its ruling. This in turn would make it unlikely that the A50 process would be completed before the next scheduled General Election or before the next European Parliamentary elections.

If, after all this, the government won its appeal on these grounds, then it would have a big impact upon the politics that would follow. If they had won on the grounds of the reversibility of the A50 process, then it would make viable the proposals from LibDem and other parliamentarians for a second referendum on the terms of exit. At the moment, as I have argued in another post, this idea makes no sense because if A50 is not reversible then what would be the alternative on the ballot paper to accepting whatever the negotiated exit terms were? But if it has been established that A50 is reversible, then the question could be to accept those exit terms or to simply stay in the EU.

There is good logic to the idea of a second referendum in that form, because whilst the June vote was to leave the EU, it was not a vote for the terms of leaving. A recent opinion poll shows that only 33% of voters would vote to leave the EU on any terms; for the others, the issue would be what the terms on offer were. Personally, I am not sure whether such a referendum would be wise (the experience of the last one does not suggest that the campaign would address the real issues) and a parliamentary vote might be preferable. However, the latter course would also carry grave risks.

At all events, if the government do proceed in this way at the Supreme Court and if they win their appeal on that basis it will open up many new issues and potential delays in, if not the scuppering of, Brexit. There are so many ironies here. It is an irony that Brexiters, who asserted the centrality or parliamentary sovereignty as a key reason to leave the EU, should even be trying to get legal permission to circumvent it. It will be doubly ironic if in order to achieve this they open up the possibility that, even if they get to trigger A50, they might end up not proceeding all the way to the exit door. Finally, it may be noted that, even if none of this happens, it is becoming less and less clear where that exit door is: it is beginning to be mooted that the UK will need to seek an interim deal after the end of the two year A50 process in order to avoid the chaos that would ensue from the fact that this time period will not be sufficient to complete the negotiations.

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