The rebate is safe
London4Europe Committee member and former HM Treasury senior civil servant Michael Romberg looks at the claims of those who say that if we withdrew our Article 50 notification we would lose the budget rebate and other opt outs.
The first thing to remember is that we have not left the EU. If we do leave the EU it would be on Brexit day, provisionally set for 29 March 2019. The transitional period that would then follow would cover the first two years or so of our relationship with the EU as a third country. But we would be outside the EU.
If we did then re-join after Brexit day it would be an application from outside. That would be true even if we re-joined during the transition period.
If we joined we could try to negotiate opt-outs from the acquis and a budget rebate. We might succeed - but the relationship is not one of equals. The EU’s approach to accession negotiations is to insist on the adoption of the full acquis, with only transitional arrangements up for discussion. So I would assume that any re-entry would be on the basis of the acquis (unless the EU has changed structurally into some sort of inner and outer membership). That would mean for example adopting the Euro and signing up for Schengen.
I should say that I think there would be no prospect of re-entry for decades after Brexit. Electors would not want the upheaval. More importantly, people would see it as an admission of defeat, a sign that we had failed to make it on our own. The national humiliation would be too great.
If the UK is be a member of the EU, that battle must be won now, before we leave.
Revoking the notification unilaterally
No-one knows whether we may revoke the notification unilaterally. Only the European Court of Justice may settle the question (including whether we keep the rebate and opt-outs). But the bulk of legal and well-informed opinion says that we may.
The argument is that a State may do anything reasonable that it is not forbidden from doing. So, absent a provision saying a notice is irrevocable, the notification is revocable. Moreover, if the ECJ found otherwise it would be expelling the UK from the EU on a technicality and in spite of the treaties urging closer co-operation between European nations.
I assume that is the message of the legal advice which the British Government is refusing to publish. After all, Theresa May keeps telling us that the Brexit decision is politically irreversible. So if her advice was that it was legally irreversible then she would surely be keen to publish it.
If we may revoke the notification unilaterally, then our membership just continues as though nothing had happened. All our opt-outs and the budget rebate stay in place. We have, after all, not left; nothing has actually changed in our membership.
It may be too late to prevent the European Medicines Agency and the European Banking Authority moving out of the UK. But that is not because we have actually left but because a relocation decision has been taken by the EU. That said, if the physical move has not actually taken place it may be possible to reverse the decision.
Revoking the notification by consent
Some (including the European Parliament) argue that we may only revoke the notification with the unanimous agreement of the EU27. Perhaps that is what the ECJ would say, though as shown above it is less likely. But we need to be clear that such a requirement is not written in Article 50.
It may just be a concern that the UK might try to obtain more time by submitting an insincere revocation followed immediately by a new notification to restart the Article 50 clock. But the ECJ would just disregard so transparent a device.
Some people may be drawing on the provision in Article 50(3) for extending the time period of negotiation. That does require the unanimous agreement of the EU27.
But there is limited justification for inserting such a requirement onto a revocation. The argument has to run a little like: Article 50 does not provide for revocation, so it is not allowed; but if everyone agrees then it is allowed.
That argument has two fundamental weaknesses. First, if a treaty is silent on a subject it does not follow that the action is forbidden. Second, if the treaty forbids something then you need treaty change to allow it, not an agreement to ignore the prohibition.
But think about the politics. Even if it were felt that revocation was permitted only by consent, would the EU27 make loss of opt-outs and the budget rebate a condition of their consent?
A sensible British Government would obtain a statement by the EU27 before a referendum on the terms that they would accept a decision by the UK to stay in the EU. We can be sure that the EU27 would like us to stay in the EU. However much they would wish for the opt-outs and the rebate to disappear they would surely realise that losing them would make winning a referendum harder. So they would agree that they could stay.
Suppose we succeed in obtaining a referendum on the terms – the only democratic, honourable, healing way to stop Brexit. Then the Government should notify the EU that if the referendum goes for Remain we would unilaterally revoke our Article 50 notification and we would expect to stay as members as before. If the physical relocation of the EU Agencies from London has not progressed much the letter should also say that we would expect them to stay.
That would dare the EU27 to object or to seek to impose terms. It is highly unlikely that they would wish or dare to do so.
The only real risk is that Nigel Farage MEP would take us to the ECJ. Bring it on!