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.

Is there an alternative to Article 50?

With the High Court ruling (if upheld) having made it clear that parliamentary approval is needed to trigger Article 50, attention is now likely to shift to the possibility that there are other routes to leaving the EU. A pervasive meme amongst Brexiters has been that the UK could simply shortcut A50 and unilaterally repeal the 1972 European Communities Act. This idea has been adopted by UKIP leadership candidate Suzanne Evans, who recently said:

“Article 50 is not the way to go. That is an EU construct. The best way to do it in my view is to repeal the 1972 European Communities Act as soon as possible”

This course of action has also been recommended by long-time Tory Eurosceptic John Redwood.

Whilst this option was not explicitly considered by the High Court (which considered the repeal of the 1972 Act at the end of the Lisbon A50 process, rather than before and instead of that process), its ruling directly impinges upon it in that only parliament could repeal the 1972 Act. But would it, in any case, be a good idea? The EU Law expert Professor Steve Peers explains that:

“[P]olitically and economically speaking, this option is insane. It would leave many practical details of withdrawing from the EU unresolved, such as payments of EU funds to UK recipients. Even if the UK could revert its membership of the EEA, that would only govern the trade arrangements with the EU, not issues outside the scope of the EEA. For instance, it would immediately end the UK’s involvement in the European Arrest Warrant (EAW). Unless we had negotiated a transitional and/or replacement arrangement – which is obviously the point of having the two-year period set out in Article 50 – defence lawyers would argue that any EAWs which the UK had issued to other Member States, and any EAWs issued by other Member States which the UK was seeking to execute, were invalid. That would mean that no fugitives could be arrested or detained on the basis of those invalid EAWs, and those already detained would have to be released. More broadly, such a ‘unilateral declaration of independence’ would destroy the UK’s credibility as a negotiating partner with the remaining EU, and indeed with anyone else, given the clear contempt that it would display for the legal rules which the UK had previously accepted. It would be a long time before the UK could plausibly claim again that it had a record of ‘fair play’ in international negotiations.”

The impetus to ‘just do it’ will doubtless resonate with many Leave voters – I recently heard a voxpop where someone thought that we had already left the EU - but as with so much in the current situation the complex realities don’t fit with the populist simplicities.

The implications of the High Court ruling

Yesterday’s High Court ruling is the biggest event since the Referendum, and opens up a huge and complicated set of issues and possibilities. In brief, the ruling is that it would not be constitutional for the government to invoke Article 50 without the consent of parliament*, a ruling consistent with centuries of precedent within Britain’s ‘unwritten constitution’. In principle this means that parliament could refuse to give its consent – and the majority of MPs wanted to remain in the EU – but in practice this is highly unlikely given the Referendum result. Remainer MPs in constituencies which voted leave will be wary of defying their electors; although the same could be true of Brexiter MPs in constituencies that voted leave (the Richmond by-election may show this). And with the latest opinion poll showing a narrow preference to stay in the EU, perhaps sentiment is shifting amongst the electorate anyway.

However what it is more likely to mean that MPs have a chance to shape what form Brexit will take, with questions of hard or soft Brexit being at the fore. That will cut both ways, in that hard Brexiters will have the opportunity to seek to bind the government to the very hardest form of Brexit (e.g. no attempts at even sectoral access to the single market, exit from the customs union) quite as much as Remainers and soft Brexiters will have the opportunity to seek to ensure single market membership or even – most obviously from SNP MPs – to seek to remain in the EU. It will become crucial for Labour to develop a coherent position, which they have so far failed to do. And, whatever happens in the Commons, the House of Lords, which has an anti-Brexit majority, will also be in a position to influence Brexit.

Of course there are other possibilities, too. The government’s appeal to the Supreme Court may result in the High Court’s ruling being overturned. Then we are back to the status quo ante, although in a fast moving situation there may be no such thing as that. Or (perhaps especially if the appeal fails) there may be a General Election, the results of which will be very unpredictable. The Conservatives would have to spell out what Brexit meant, if they were to seek a mandate through the election for that stance, and that would expose the significant rifts within the party. UKIP might become a significant force (and what’s the betting that Nigel Farage decides, yet again, to stay on as its leader?). And the LibDems might be able to capitalise on the remainer vote to gain what could be a decisive influence in the parliament that would follow. At all events, it seems increasingly unlikely that the government will be able to continue to try to define what Brexit means without telling the public what they have in mind.

The reaction of Brexiters to the ruling has been truly hysterical, with it being described as ‘betrayal’, the ‘death of democracy’ and “an attempted coup”, and the person who brought the action has been subjected to death and rape threats. The Daily Mail, quite disgustingly even by its standards, described the High Court judges as “enemies of the people”. It is deeply unattractive, to say the least, and shows how even in victory the Brexiters glory in a victim mentality. But it is also ironic, since the cornerstone of the Leave campaign was to restore ‘sovereignty’ to the British parliament and judiciary. So it is extraordinary that the proposition that parliament should make decisions is seen as an affront to democracy; and dangerous populism to posit that 52% of those who voted – thus, 37% of the electorate – as ‘the will of the people’ and exempt from the rule of law or the workings of the constitution.

But of course what all this anger really derives from is the complete failure of those who want to leave the EU to specify either what they want as an alternative or to plan the process for exit. On the former, the refusal, in particular, to agree on whether voting leave meant voting to leave the single market or not is what has opened up the whole soft versus hard Brexit debate. On the latter, both the Leave campaign and May’s government have shown themselves to have no grasp at all of either constitutional law or political realities by trying to arrogate to themselves decisions about what form Brexit will take.

As I observed in my October 13 post:

The UK is an old and complex democracy, whereas referenda are unsubtle and, within the UK, very recent political instruments. Whilst Brexiters want to claim that the narrow vote of June 23 is some unanswerable and inviolable democratic truth, they may be about to find that – as with so much else that they believe – reality is not so straightforward.

That seems to be coming true. It is very far from clear where the High Court ruling will take us. What is clear is that it has thrown numerous chips up into the air. Where they will land is impossible to predict. Political and legal chaos can be added to the growing price tag of the Referendum vote.

*The full ruling is long and very technical, but the core issues as I (a non-lawyer) understand them are as follows: leaving the EU would entail the repeal of the 1972 European Communities Act, a matter which would affect UK law and can therefore only be decided by Parliament, not by ‘Royal Prerogative’ (i.e. executive action on behalf of the Crown). The invocation of Lisbon Article 50 requires that it be triggered in line with the constitutional requirements of the member state, and once invoked it cannot be rescinded. Therefore, to invoke the A50 constitutionally requires the assent of Parliament because its inevitable consequence would be the repeal of the 1972 Act.