LEGAL MESS

Can Brexit be reversed?

Obsession
Brexit
Obsession
Brexit

Although the UK voted to leave the EU on Jun. 23 last year, it wasn’t until Mar. 29 that it formally began the exit process. Brexit was officially initiated when prime minister at the time Theresa May sent a notification to the EU that triggered Article 50, a clause in the Lisbon Treaty that binds together the bloc’s members.

The clause gives the UK two years to negotiate the terms of its exit. What is not clear, however, is whether the triggering of Article 50 can be revoked and thus whether Brexit can be reversed. It’s a crucial question, because if the answer is yes, that means the UK would have an insurance policy against disaster: that if things were to go horribly wrong in the exit negotiation process, the UK could walk back the decision to leave the EU.

The trouble is, as legal blogger David Allen Green explained in a series of recent tweets, “nobody knows for certain.” There is no mention of revocation in the article text. “But then Article 50 is an atrocious piece of legal drafting,” Green wrote. “Written by diplomats, not lawyers. It shows.”

Leaving out a mention of revocation may have been purposeful because Article 50 was intended never to be used. “It is like having a fire extinguisher that should never have to be used. Instead, the fire happened,” Giuliano Amato, a former prime minister of Italy who helped draft the Lisbon Treaty, told the Independent. Article 50 was included to assuage nationalists that no member state of the EU was forever bound to remain part of the union.

Still, Green says, there’s little doubt that Article 50 could be revoked if all the remaining member states of the bloc agreed to allow that to happen. It’s not because the clause itself provides for such an arrangement, but because a unanimous agreement among all member states should be enough to allow it.

What we don’t know yet is whether the UK can unilaterally revoke Article 50 and thus reverse Brexit. A London-based lawyer filed a lawsuit in an Ireland court hoping to find the answer. But he withdrew the case after the Irish government came out in opposition to the case, and their legal team determined that the case was very unlikely to make it to the European Court of Justice, the highest court under EU law and the only legal body that can answer the question definitively.

“On one hand, most notices and notifications in law can be withdrawn,” Green says. “But on [the] other hand, unilateral revocation would undermine [the] scheme of Article.”

The two-year negotiation period would be pointless if revocation were possible, Green argues, because then any EU member could continually start-stop the process and thus reset the countdown indefinitely until a time when it find itself in a favorable negotiating position.

One of the authors of Article 50, John Kerr, believes it is unilaterally revocable. “During [the negotiation] period, if a country were to decide actually we don’t want to leave after all, everybody would be very cross about it being a waste of time,” he told the BBC. “They might try to extract a political price, but legally they couldn’t insist that you leave.”

But Green doesn’t buy it: “And those who quote the author’s intentions for Article 50, all [I can] say is: they should [have] done a better job of drafting it.”

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