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 If it’s withdrawn, there isn’t one.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.