In May, the House of Lords select committee on the European Union published a detailed document on the process of withdrawing from the EU.
Among other things, the committee concluded that:
…we have no reason to believe that the requirement for legislative consent for its repeal would not apply to all the devolved nations.
-That is, Scotland, Wales and Northern Ireland.
The committee also concluded that, once Article 50 of Lisbon Treaty has been invoked, it can be reversed before the end of the two year negotiating period:
There is nothing in Article 50 formally to prevent a Member State from reversing its decision to withdraw in the course of the withdrawal negotiations. The political consequences of such a change of mind would, though, be substantial.
This is interesting in that it introduces yet another set of permutations to the many Brexit options. For example, Article 50 could be invoked by the UK, and then when the negotiations with the EU have reached, say, month 15, and it is clear what sort of deal the UK may get regarding exiting the EU, a general election could be held. If that general election results in a change of government, and the new government is elected on a mandate of rejoining the EU, then Article 50 could be reversed.
As they say on social media:
Just sayin’
It is not fanciful to imagine the scenario where the United Kingdom, including its devolved nations, works through the various Brexit options and then reaches a “deal” with the EU which leaves us with three options:
1. Leave the EU, stay in the single market but have no say over the rules we have to abide by, keep paying nearly as much to the EU as we are now and have an emergency brake on immigration. Face a pitch-fork revolution from outraged “Leavers”.
2. Go onto “World Trade rules”, lose the City “passporting rights”, lose Scotland from the UK, unravel the Good Friday agreement in Northern Ireland by re-erecting a land border, but have full control over anyone who is daft enough to want to come into a country which has been reduced to economic and constitutional carnage.
3. Stay in the EU, save the economy, save the United Kingdom from breaking up.
Upon sober, collective national reflection, it may seem that simply staying in the EU is the most sensible option.
Hat-tip: Mick Taylor
* Paul Walter is a Liberal Democrat activist and member of the Liberal Democrat Voice team. He blogs at Liberal Burblings.
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28 Comments
Indeed. A point to remember is that the Vienna Convention on the Law of Treaties is presumably the primary document for interpreting the EU treaties. Article 68 of the VCLT provides that “a notification or instrument [terminating a treaty] may be revoked at any time before it takes effect.” I would have thought this was pretty conclusive. Or is there something else I have overlooked?
The Prime Minister has said Brexit means Brexit, she has set up a department just for that purpose and it’s headed by a life long leave supporter who says we will be out by Dec 18. I know it’s hard for many of us, but we are leaving. The people aren’t demonstrating in the streets in their millions, there is no reason for a GE, the Brexit side have won. If the EU wants to screw us it will just make the people angry and increase the number of leave supporters. When and on what terms we leave I don’t know, but I’m pretty sure we won’t be having anymore euro elections in the UK.
Why would the government call a general election after beginning the withdrawal process?
My current theory is that early in 2017, May will announce the terms of the deal she is going to try to get with the EU and call a general election for Spring 2017, saying, ‘Give me a strong mandate to do this negotiation, and show the rest of the EU that we are serious. Vote for anybody else, including UKIP, you will let Labour in, possibly in hock to the SNP and/or the Lib Dems, and we will never leave.’
She will then win a landslide victory; a majority close to 100, if not over it.
The sign that this is in the offing will be if the repeal of the Fixed Term Parliaments Act makes it into the Queen’s Speech at the start of the next session of Parliament.
(Oh yes, and she says that the morning after returning to Downing Street she will serve the article 50 negotiation.)
Tim
As Malc says they’re talking about December, but I think it will be sooner. As for the rest. I don’t see it. The vote was an endorsement of Leaving the EU, not of a Conservative government. National Election voting patterns will return to normal pretty quickly. Also let me point out that the Conservative government, including, Teresa May supported remain! In case you didn’t notice they lost that one.
Glenn: spell her name right.
Andrew Marr said on BBC1 that she supported Remain and she startled.
Keeping her head down by getting on with the job?
Richard Underhill.
Typo, why so rude?
I don’t watch telly anymore. So I didn’t see it.
Tim
The Fixed Term Parliaments Act does not have to be repealed to call an early general election.
The Brexit issue is essentially political, but the legal side of things cannot be ignored. On tht score, there re a whole host of issues that need to be resolved before n article 50 trigger. Not least, the leagal status of the referendum, the question of the sovereignty of parliament vs the use of the royal prerogative. Resolving these two questions could take until late 2016 or early 2017 and wil probaably only be decided by the supreme Court. My gut instinct is that Parliament will have a significant role before the article 50 trigger is pulled – possibly in the form of an Act. The remain MPs may be able to insert a provision for a second referendum before the conslusion of the negotiations and actual exit e.g on the exit terms. I also suspect that May will consult with the devolved assemblies, even if ‘legally’ she does not have to at this stage. As negotiations move forward, article 68 of VTLC is crucial – in fact it is a ‘game changer’ though it has always been there. The 2011 EU Act may also come into play, before the final exit and require a UK referendum and if the UK exit necessitates an EU treaty change before Brexit is concluded, this could require referenda in EU states, which may or may not receive a majority (an absence of a majority in even one EU MS e.g. on the exit agreement, could lead to an extension of the timeframe). In short, there are a myriad of possibilities before we actually exit – and personally I think we will still be ‘in’ in 2020 i.e. the year of the next scheduled general election. All still to play for.
Thank you Paul. Interesting points. Showing my ignorance – what is VTLC?
@paul o’grady: “In short, there are a myriad of possibilities before we actually exit – and personally I think we will still be ‘in’ in 2020 i.e. the year of the next scheduled general election. All still to play for.” Then who would discount the possibility of deputy Prime Minister Steven Woolfe (UKIP) by the 2020 election?
All the best.
@Paul Walter
VTLC (think it should have been VCLT?) = Vienna Convention on the Law of Treaties
https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf
Not certain how valid it is in this context as the EU is not a signatory?
Chris,
Surely the Vienna Convention on the Law of Treaties is customary international law. It is also (if I remember right) meant to be largely a restatement of existing public international law on the topic. Whether the EU has signed up to it is therefore irrelevant. Article 68 of the VCLT can therefore be used to withdraw a notice of termination under Article 50 at any time during the two year notice period.
@John Hugo
“Whether the EU has signed up to it is therefore irrelevant.”
I wouldn’t think that this is correct, surely you can’t be bound by something that you haven’t agreed?
It’s not just the the EU that hasn’t ratified, most of the EU nations haven’t either, so unless the EU has some sort of agreement in place with the member states specifically agreeing to use this convention as a guideline, then I don’t see how the EU could be bound by it.
@Paul Walter
Two questions:
1. Common understanding is that cancellation of Article 50 once triggered would require the unanimous consent of the other members. It’s one reason not to trigger Article 50 before knowing the deal. Is that HoL opinion more than an educated guess, and if so why do so many believe the other view?
2. The other option with the Fixed-term Parliaments Act is a vote of no confidence in the Government. Labour and the SNP won’t trigger that if the likely outcome is in favour of May and friends. And it probably isn’t constitutionally possible for a Government to vote no confidence in itself. How else can May call an early election to suit her own interests? And if she can, which idiot was responsible for a totally useless Act that completely fails its primarily objective to prevent Governments calling elections to suit their own advantage?
“Then who would discount the possibility of deputy Prime Minister Steven Woolfe (UKIP) by the 2020 election?”
That depends on the deal doesn’t it. The more damaging the deal negotiated by the Brexit numpties the less likely the electorate will be happy with Leaving.
@ Paul – “Face a pitch-fork revolution from outraged “Leavers”.”
You dismiss option 1 (EEA/Efta) with the above, but fail to draw the even starker parallel with option 3 which you claim will ‘save the United Kingdom’.
Stevan
“How else can May call an early election to suit her own interests?”
She could trigger the other method of having an early election in the Fixed Term Parliaments Act 2011:
‘If the House of Commons, with the support of two-thirds of its total membership (including vacant seats), resolves “That there shall be an early parliamentary general election”.’
If Theresa May tells her MPs to vote for an early election, then Labour, SNP are hardly going to vote against, because by doing so they would be saying: “We’ve spent the last x years saying that the Tory government is horrible and should go, but now we come to think about it we would love to have another one/two/three/four years of a Tory government after all”.
Paul, I cannot see Labour and the SNP agreeing to an election that would result in a Tory landslide, the only reason May would even consider it. Besides, she can keep better control of her own backbenchers if the majority is small. Thatcher and Blair were ousted with significant majorities behind them.
Jedibeeftrix
“You dismiss option 1 (EEA/Efta) with the above, but fail to draw the even starker parallel with option 3 which you claim will ‘save the United Kingdom’.”
Well first of all, the EEA/EFTA option is still my preferred option in the current situation.
I should imagine that it would leave a lot of “leavers” very angry, which is why a general election may be good thing to allow a full debate if we are going to go down that route.
Secondly, for option 3 I have amended that line to say “save the United Kingdom from breaking up”. That is because option 2 could well see Scotland becoming Independent, the Good Friday agreement in Northern Ireland unravelling and, further afield, perhaps even Gibraltar having second thoughts. Yes of course this will make leavers very angry but if a general election makes a decision to elect a government on a mandate of staying in the EU, then that effectively overturns the referendum result. What I was trying to say in this article is that, once all the options have been fully thrashed out and negotiated with the EU, then staying in the EU may look like the best option to the majority of people in the UK.
Stevan
Indeed, I agree. The main point I was trying to make is that there are two ways in the Fixed Term Parliaments Act that an early general election can be called: 1. The no confidence route and 2. The two-thirds majority route.
Glenn: Sorry you thought it was rude.
Flood protection demands brevity.
After all what Leave was down to offering at the referendum was Chairman Mao’s Culture Revolution “Let a thousand flowers bloom”.
Paul, with respect, you seem suddenly to have discovered the option of withdrawing an article 50 notice. I posted about that several weeks ago on LDV!
I believe the HoL is correct. We can withdraw an article 50 notice. What Article 50 does say is that if a country that has withdrawn wants to rejoin that requires unanimous agreement of the EU members, but, contrary to what a certain Mrs Leadsom said, ANY new member requires such unanimity – including turkey. Article 50 is silent on how a notice of withdrawal is treated, except to say that the withdrawing country gets no say in the terms of its withdrawal, which is decided by the remaining countries in the absence of the withdrawing member. Now I’ve no doubt the remaining EU members would be totally fed up if the UK did withdraw its notice under Article 50, but I am confident that the UK could withdraw and maintain its current EU terms and conditions.
Mick
“Paul, with respect, you seem suddenly to have discovered the option of withdrawing an article 50 notice. I posted about that several weeks ago on LDV!”
Apologies Mick. I’ve added a hat-tip to you and a link to your relevant comment at the bottom of the article.
Lets be absolutely clear. No deal with the EU will be as good as the one we have now. If the government want to put a poor deal to the people in a general election or a referendum it will only succeed if we have the same sort of dumb referendum we just had with no rules about lying and no threshold for success. We need both a turnout and a majority threshold – say 75% and 60%. Then there can be no doubt as to what people wish the government to do.
It has taken the EU eight years to come close to concluding a trade deal with Canada. TTIP is on similar timescales. I do not believe that the EU is capable of handling Brexit and the UK will just drop out of the EU in two years from triggering Article 50. That two year period will inflict untold damage on the UK and probably spell the end of the union.
Having considered all options, I am sad to say that the best option for the UK would be to simply repeal The European Communities act and unilaterally withdraw from the EU. (needs vote in parliament and maybe that’s a chance to derail the process). We get an Economic shock and probably a recession, but the country is galvanised and moves quickly towards the ‘glorious sunlit uplands’ of Brexit heaven; probably best viewed from the back of a long dole queue. Europe would be antagonised but forced to come to some decisions about the future and everybody can get on with things.
There are no good options here. This is why I will never give up the fight against this mindless decision. Somehow this has got to be turned around. The wind seems to be behind the Brexit camp at the moment.
Only 36% of the plebiscite voted for us to leave the EU and a similarly negative narrative needs to be developed by the Remainers in order to keep this decision from snowballing.
Professor Michael Dougan, Professor of European Law, Liverpool Law School. Contains discussions about among other things how the Vienna Convention applies in this case. It only applies to states – not individuals or corporations.
Video with a warning from before the referendum:
https://www.youtube.com/watch?v=USTypBKEd8Y
Video with a summary from after the referendum:
https://www.youtube.com/watch?v=0dosmKwrAbI
This is the reality of what we’re facing.
IMF finally recognises abject foolishness as……… well, abject foolishness:
http://www.telegraph.co.uk/business/2016/07/28/imf-admits-disastrous-love-affair-with-euro-apologises-for-the-i/
Have you yet made that damascene conversion from the orthodoxy of well-intentioned depravity?