Brexit: could we extend to revoke?

By the editor, Apr 17 2019 10:59AM

Two key dates emerged in the Brexit saga: 29 March and 12 April 2019. Having passed both without leaving, the chances of any Brexit happening at all decreased significantly.

As those dates drew nearer, speculation grew about the possibility of revoking the UK’s notification that it was leaving the EU under Article 50.

In March and April, several distinguished twitter lawyers - @davidallengreen, @SpinningHugo, @ProfMarkElliott - stated that any legislation to revoke Art 50 must be passed quickly. There was a danger, they suggested, that any legislation introduced in Parliament to revoke couldn’t get passed in time before the Art 50 period expired (originally 29 March, then 12 April). But why was this?

The assumption was that no further extension to Art 50 could or would be made to allow for the passage of this legislation. But is there any legal basis for that assumption? If so, it would have been helpful if this had been spelled out.

Given that another “cliff edge” approaches at the new expiry date of 31 October, and there is the possibility (however remote it may seem at present) that the UK may wish to revoke at that point, would it be the case that the legislation would have to be rushed through then?

I can’t see what the legal basis for that view is. Article 50 doesn't state what extension is for. Under Art 50(3), the state concerned simply ceases to become a member after the 2 year period "unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period." This wording doesn't exclude extending for revocation. So on a plain reading of this provision, there is no reason why there shouldn’t be an extension for the purposes of revocation.

Could it be argued that, nevertheless, the underlying purpose of extension is to secure a deal, thereby excluding extension for revocation?

That seems a weak argument, unless there was extraneous evidence to back it up. That is partly because revocation is accepted to be an option once the Art 50 notification has been made. The case of Wightman and Others v Secretary of State for Exiting the European Union demonstrates that. So why should Art 50 be read as preventing a member state from staying in the EU where the EU wanted an extension to achieve that? Any such extraneous evidence (for example, indications of what the intention of Art 50(3) was at the time it was drafted) would have to be clear and powerful to persuade a court that it would be unlawful for the EU to extend Art 50 in these circumstances. No such evidence has ever been produced as far as I am aware.

Of course, there may be political reasons why an extension wouldn't be granted. The two reasons that appear possible are: 1) the EU doesn't consider the UK is serious about revocation; or 2) one or more EU members would prefer the UK to leave.

Regarding 1), similar considerations apply to revocation as to any other statement of intent by the UK (such as passing a deal, or arranging a referendum). Why would revocation be any different? If a bill providing for revocation had, for example, passed the first stages of the legislative process in the Houses of Commons and Lords, why wouldn’t the EU grant an extension to allow Parliament to complete the process? Especially given that the alternative would be the disruption caused by a no deal exit, which none of the other EU states want.

Regarding 2), is there sufficient evidence of this? There are certainly reports of such sentiment, e.g. from the French. And it is true that extension requires unanimity, so one state could veto such an extension. However, collective pressure can be, and clearly already has been, exerted. In any event, the evidence that France or any other state would seek to prevent the UK the from staying (especially if the alternative was a no deal departure, with particularly damaging implications for Ireland) seems fairly scanty so far.

Finally, it's possible that Parliament could wish to revoke and the Government sought to prevent it, and attempted a no deal exit. But the current Prime Minister has said that she wouldn't override the will of Parliament regarding leaving without a deal, and appears to be acting accordingly. A future, more hardline Brexiteer PM, may well emerge of course, given the current state of the Conservative Party, and it is quite possible that such a PM may wish, or may feel pressured, to leave without a deal. But a Government that acted to prevent an extension in these circumstances would inevitably be challenged in court. It would also face, and almost certainly, lose a no confidence vote in the House of Commons. Under the Fixed-term Parliaments Act 2011, the Government wouldn’t necessarily fall immediately in these circumstances, but it would be on borrowed time. Would it make political sense for a PM to press on regardless in those circumstances, precipating a likely general election at a time of constitutional and economic crisis? Would the civil service support a Government that was acting in such a way? It may be also that the EU wouldn't accept that the "UK" (as represented by a PM acting contrary to the wishes of Parliament) had refused to agree an extension in these circumstances. The issue may end up being resolved in the courts.

But the latter issues are matters of speculation, as to whether an extension would be granted. Going back the first point, is the any basis for the assumption that an extension could not be granted, as a matter of law? No argument has been put forward to justify this.

If the argument is in fact a political one, it would be still be worth fleshing out the reasons for it, particularly if this concerns the possibility that the Government might wish to prevent revocation and extension that had the explicit support of Parliament. It would be interesting to hear the views of such commentators on whether there are circumstances in which the Government could achieve that.

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