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Yes, we CAN change our minds about Article 50
15 Oct, 2018

There are many people who support the case to remain in the EU but have given up the fight now because they believe that the UK’s notification under the European Union’s Article 50 of our intention to leave the EU is legally irrevocable, and that it is therefore too late now to change our minds and decide after all to remain.

By John Attree. Edited by Andy Pye. Additional comments by London4Europe Committee members Michael Romberg and Nick Hopkinson.

But it is not too late. And not too late to reassure all those people and turn them into active campaigners and voters for the Remain cause.

According to Malcolm Spence QC, this worry has no foundation. The overwhelming weight of legal opinion and European political commentary (for example from Donald Tusk and the EU Parliament) is that the UK may decide to cancel its notification to leave at any time, so long as we do so within the Article 50 two-year notice period - ie before 29 March 2019.

Spence is a former Deputy High Court Judge specialising in Statutory Interpretation - and is a passionate Remainer. For more than a year, he has made a special study of the legal questions surrounding the possibility of the UK’s cancelling our notice to leave the European Union - and opting to remain in the EU after all. Spence has written detailed legal Opinions on this subject which he has circulated to wide range of political and business leaders in the UK and Europe, with no disagreements. His clear conclusion is that a decision to cancel our notice to leave under Article 50 could safely be made at any time up to the end of March next year without penalty, if Parliament can be persuaded to pass a short Act to that effect.

It is for the UK Parliament alone to decide whether or not the UK should withdraw from the EU. If Parliament were to decide now not to withdraw, and the EU or anyone else wished to object on the basis that this decision was unlawful, the objection would have to be heard in the European Court of Justice.

In cases like this the ECJ determines the application of the relevant treaty by reference to its text and its underlying purpose, which is to bring about closer union between member states for their mutual benefit. Since that purpose is clearly best served by existing member states remaining within the EU, it is virtually certain that in this situation the ECJ would rule in favour of the UK government’s decision not to withdraw from the EU.

This conclusion is widely supported by authoritative legal sources, for example by Lord Kerr (formerly Secretary-General of the European Convention on the Future of Europe, who drafted Article 50), by Jean-Claude Piris (former Director General of the Council of the European Union’s Legal Services), by Malcolm Spence QC (former Deputy High Court Judge specialising in Statutory Interpretation), and finally by the House of Commons briefing note on this subject which concludes that “a preponderance of academic opinion” holds that the notification is indeed revocable.

So the UK could, with high confidence, change its mind and decide at any time between now and 29 March 2019 to remain in the EU, if that becomes the majority will of our elected representatives in the House of Commons – in which case a very short Act of Parliament would be sufficient to implement their decision. 

Convinced Remainers must therefore continue to campaign vigorously to persuade our MPs of the overwhelming benefits of staying in the EU, and the urgent need to revoke as soon as possible our Article 50 notification to leave it.

Comments:

It is good to remind people that the Article 50 notification can be withdrawn.

Although this could be done at any time, we at the European Movement are pushing the People's Vote as the first (and key) step to withdraw Article 50. I don't like referendums but what the people have done, can only be undone by them. Jumping the gun and calling for its immediate revocation is premature - it could be seen as anti-democratic and lacking in widespread legitimacy.

The People's Vote Roadmap published recently should increasingly form part of our planning and thinking. It is worth a close read. 
Nick Hopkinson

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It is good to have this opinion stated definitively. It would be ideal if the Article 50 notification could be revoked after the People's Vote rather than immediately, as it would be more democratic.

Readers will also wish to note that the Good Law Project has ensured a reference to the European Court of Justice to determine definitively whether the Article 50 notification may be withdrawn. The case is scheduled to be heard on 27 November 2018. You can read more about it here and contribute to the crowdfunder here.

 

Michael Romberg

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