Parliament cannot just revoke the Article 50 notification

Following the ECJ judgment that the UK has the right unilaterally to revoke the Article 50 notification several people have suggested that Parliament do just that. Let’s not misunderstand what the judgment means, writes London4Europe Committee member and former Home Office senior civil servant Michael Romberg.

A delay to Brexit

Some have suggested that Parliament should revoke the notification to delay Brexit. That is exactly the abuse of process that so worried the European institutions. Article 50(3) lays down a procedure for extending the Article 50 period: unanimous agreement.

That risk of abuse was addressed by the Court in its judgment. Revocation must be in an “unequivocal and unconditional manner”. That means “that the purpose of that revocation is to confirm the EU membership of the Member State concerned …, and that revocation brings the withdrawal procedure to an end.”

It is therefore hard to see that a revocation whose intention was to unilaterally extend the negotiating period would be regarded as a sincere revocation. I would expect the EU to regard it as null.

Emergency action to avoid no-deal

Some say that if the UK was heading for a disorderly no-deal Brexit, Parliament could at the last minute pull the emergency brake and revoke the Article 50 notification.

However even with no-deal looming the EU would surely ask how the British Government and Parliament could have failed to anticipate the well-known 29 March deadline? Why did the UK not arrange to secure an extension to the Article 50 notice period (or accept the deal that the EU has already agreed)?

True, emergencies bring their own rules. But even so it is not clear whether the EU would accept such a revocation - unless the UK really did mean it to be permanent.

To put a stop to Brexit

Others argue that Parliament should just bring the whole Brexit process to a halt and revoke the notification.

The argument is based on (in some cases mutually contradictory) assertions like: a referendum would take time while the country’s position deteriorated; it is now clear that Brexit will be harmful; a referendum would be divisive; it is not certain that Remain would win a referendum.

This is a return to the old arguments that the referendum should just be set aside: it was advisory, the franchise was wrong, Scotland had voted Remain, the question was too difficult for the electorate, Leave lied, Cambridge Analytica cheated.

But the referendum was a major statutory public vote. The Prime Minister had told the electorate that its result would be implemented. It created a clearly binding mandate.

The wish of many Remainers to just ignore the result allowed the Remain movement to be branded as anti-democratic and not listening to voters. Whatever negative feelings about the political elite had motivated people to vote Leave, those assertions by Remainers confirmed them.

We live with the consequences even now. How after all could our opponents brand a second referendum – a vote by the same people as voted in 2016 - as anti-democratic except by elision from the arguments they used against some Remainers’ assertion that the 2016 result should just be set aside?

Democracies need procedural justice. Losers need to feel that they have had their chance to have their say in a fair fight. Few of the arguments put forward by Remainers for setting aside the referendum result had much merit and none had merit after the event when the rules had been set in advance.

The People’s Vote

Now that the Remain movement has at last coalesced around the People’s Vote – a referendum on the terms of Brexit with the option to Remain – let us not throw all that away by resuming earlier talk about just setting aside the referendum. Resurfacing those ideas would ensure that Leavers did not listen to anything else we said.

The core case for the referendum on the terms: in 2016, Leave had no plan. No-one takes a project from idea to implementation without producing a plan and subjecting that plan to a project review. We clearly know so much more about Brexit than we did then – people need to give their informed consent to what happens next. Having the same people who had approved Brexit-the-idea decide whether they like Brexit-the-plan is honourable and democratic.

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