We have not passed the point of no return

We go into this general election with the government claiming we have passed the point of no return, in that a notification under Article 50 of Britain’s intention to leave the EU cannot be reversed.

They’re wrong.  Britain still has the right to change its mind.

For a start, there is a clue in the wording of article 50. An “intention” is not yet a deed. And intentions can change before the deed is done.

And this is also the overwhelming legal opinion among EU law experts and indeed the EU institutions.

The President of the European Council himself, Donald Tusk, said the UK will, in due course, need to assess the outcome of negotiations to decide if Brexit is really in its best interests, and that revoking an Article 50 notification is “formally, legally” possible.

Jean-Claude Piris, former director-general of the EU Council’s Legal Service, also believes “there is no legal obstacle to the UK changing its mind, in accordance with its constitutional requirements”

Britain’s Lord Kerr, who helped draft the exit clause, said: “It is not irrevocable – you can change your mind while the process is going on”.

An academic law article by Aurel Sari concluded that the completion of the withdrawal procedure depends on their being a notification to proceed with. If it’s withdrawn, there isn’t one.

The Prime Minister of Luxembourg Xavier Bettel signalled he believes that the UK can change its mind after notification.

Professor Alan Dashwood, a veteran professor of European law and Fellow of Sydney Sussex College, Cambridge, also considers that there is nothing in Article 50 that would prevent the UK from changing its mind during negotiations.

The UK’s most senior EU law experts, Sir David Edwards, Sir Francis Jacobs, and Sir Jeremy Lever, have provided a legal opinion which reads, “if Parliament decided to reject the available terms of withdrawal two years from now, the notification could be unilaterally revoked by the UK.”

The European Parliament itself is likely to make reference to the revocability of Article 50 in a resolution on Brexit due to be adopted next week, albeit qualified by an assertion that this must be accepted by the others to prevent Britain withdrawing it just to reintroduce it again a week later to start the clock running again. The EU Committee of Regions and Local Authorities has already done so, without such qualifications.

Sir David Edward, former Judge of the EU Court of Justice, said it was “absolutely clear that you cannot be forced to go through with it if you do not want to”.

In any case, there is a general principle of international treaties as laid out in the Vienna Convention on the law of Treaties, states that a notification to withdraw from a treaty may be revoked at any time before it takes effect.

To sum up, the government’s insistence that we cannot change our minds smacks of desperation. They don’t want the British people to have a chance to reconsider because they fear a change of mind.

But as David Davis himself said, a democracy that cannot change its mind ceases to be a democracy.

5 Comments

  1. Thank you for the update on the principle of revocation of article 50. It seems only common sense that like any other legal contract either parties can withdraw prior to signing off the contract. Put simply, when buying a house you have not bought it until the contract is signed, and so this must be the principle for all other contracts. Many of us believe that Brexit is and will be an even greater disaster to this country as it will be for the remaining 27 nations. It is a lose lose scenario, but a greater loss to the UK. Those most vulnerable will be hit hardest and we must try to change public opinion that Brexit is not inevitable and we can change our minds over the next 18 months. Thank you Richard for your encouraging words to those who wish to continue the fight for commonsense over prejudice.

  2. Theresa May’s decision for an early election – one that she said only weeks ago would not happen because we needed a period of stability – is entirely consistent with her inconsistent approach to everything, including her miraculous conversion to a radical Brexit, having argued pre-referendum it would be deeply damaging to our economy and national security. So she promises today strength and stability under the Tories … but what is her promise for tomorrow?

    One by one, May’s targets in negotiation are being plucked in advance from the fine tree owned by twenty seven others, leaving windfalls for her to claim as a triumphant prize. Still she persists with those brainless slogans and a baseless optimism in ‘making Brexit a success’ – her utterances in an oxymoronic world class, alongside a happy nuclear war and a celebration of child poverty.

    Her permanent air of harried defensiveness and the fake smile of an unrepentant headteacher sacked for bullying her staff – that uncomfortable body language tells us far more than her evasion of live televised debate can hide. Should we trust our children’s future to a politician who relies on empty slogans and opposition taunts, lacking the adult confidence to engage in live debate without the baying support of her back benchers or her PR advisors?

    If she had one iota of decency and political nous, May would be gently preparing the way for an Article 50 retreat to preserve the economy, our security, NHS and public services – and the future of all those millions of Britons who are ‘just about managing’ now – but will not survive in the ruins of her deliberately hard Brexit.

  3. I share Donald Tusks comment. He is not the only dreamer that this nightmare of Britain leaving the EU will be not happen. I refuse to accept even the possibility of it.

  4. “But as David Davis himself said, a democracy that cannot change its mind ceases to be a democracy.”

    We were never a democracy in the first place, that’s just an act the Tories love to play out.

Leave a Reply

Your email address will not be published. Required fields are marked *

five × 3 =