That plan is the referendum

London4Europe Committee member and former senior civil servant Michael Romberg worries that those who want revocation to be effected now do not have a plan.

 Confronted with the chaos in Parliament and the risk of No-deal, many Remainers are turning to a simple revocation of the Article 50 notification as the way ahead.

The call for Revocation has usefully demonstrated the strength of Remain feeling. It can be seen as in effect the Remain movement’s "No Deal Brexit". Some believe it has strengthened the cause of the People’s Vote. For example, there have been cases where the number of signatures for the Revoke petition has apparently persuaded an MP in a marginal constituency to back the referendum.

If Parliament fails to provide for a People’s Vote (or to vote for the Deal) then the choice at the last minute is whether to revoke Article 50 as an emergency, albeit imperfect, option rather than go to No-Deal. The 6 million signatures on a petition would be an asset in such a circumstance. 

But – there is always a but - like every policy, revocation now needs a plan. I have not seen one. There are various ideas for using revocation to obtain a pause in the Brexit process – but that is legally doubtful. Fundamentally however, immediate revocation causes political problems which are not being addressed. What would address them is a referendum. That is what we should support.

A revocation to carry on discussing Brexit would be void

The European Court of Justice decision to allow unilateral revocation has a sincerity clause: 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.”

Sure, if we stop this Brexit process we are not prevented from ever starting another one. You don’t get just one shot at Article 50. But it does have to be a separate process.

The European institutions had consistently feared that the UK would use revocation to get round the requirement in Article 50(3) for unanimity for an extension. The Court respected their fears.

Quite what the sincerity clause means is not clear.

But think of the proposals that we revoke, reflect further on what we want out of Brexit, maybe have another referendum later and resubmit the Article 50 notice if we still wish to Leave. Would the ECJ regard that as “unequivocal” and “bringing the withdrawal process to an end”?

I suggest that any plan for further Brexit discussions that was concrete enough to gain the acceptance of Leave voters would hardly meet the ECJ’s test. The House of Commons Library briefing says: “It would also not be possible to revoke Article 50 in order to call another referendum if there was a possibility that this could lead to the UK then issuing another Article 50 notification should the referendum result in a decision to restart the withdrawal process.”.

That would mean that the Court could regard a revocation as void. We would have left with no deal.

Revoke and stop Brexit brings a political problem

We have all read the newspaper reports from Leave-voting towns revealing the anger at the political establishment for failing to deliver on the referendum result.

The claim that another referendum would be undemocratic is absurd. But the fact that it can be made tells us something about the atmosphere we are in.

There is no point in arguing that a million people marched and six million signed a petition. These would be the winners from revocation. The essential point about a democracy is that the losers think the process was fair enough that they are willing to accept the result.

In 2016 the country voted to Leave in a major statutory vote. The electorate were told their decision would be “implemented”. Today half the country wish to Leave. A great chunk of Remain voters believe the referendum must be honoured by Leaving.

So the task for those who wish to revoke the Article 50 notice now is to devise a plan that leads Leave voters nonetheless to accept a complete stop in the Brexit process.

I have not seen such a plan. The speech by Joanna Cherry MP introducing her motion for revocation to prevent No-deal contained none. We all know where those go who advocate risky major change without even a sketch of a plan for carrying it out safely.

“But nothing can be worse than No-Deal”

Sure, No-deal would be bad, although I would not focus on the problems of the first few weeks but on the longer term harms.

But it is not enough to say: “Where we are heading is bad, so this other course of action must be better”. That would be like saying “I don’t like being in the EU so let’s leave”.

There have to be two plans which can be assessed and compared to see which is better.

Fortunately, there is a plan: the referendum

If we are concerned for our country, for the community we live in, then our aim is to heal a bitterly divided nation.

That needs us to stay in the EU – because without the virtues of co-operation and openness the UK cannot be a good place to live. That means settling the debate on EU membership – as the 1975 referendum with its 67% Remain vote did. We won’t get to 67% by maximising the turnout of Remainers. We will only do so by persuading Leave voters to vote Remain in their own best interests.

Here is why the 2019 referendum can be healing; uniting not divisive:

• The 2016 result would have been implemented because it produced a Brexit plan – the referendum would ask the next question in the series, not the same question again.
• The 2019 referendum would be a fair process where everyone would get the chance to have their say – there are fair ways of structuring a multiple choice referendum if more than one actually available Brexit option has real public support.
• By obliging Remainers to persuade Leavers we will have to change our tone to one of real respect and engage with them – we can have a pledge of good conduct.
• We can run a positive and hopeful campaign about EU membership – on Leavers’ ground (sovereignty, freedom of movement, national identity) - to give people reasons for wishing to be in beyond protecting their wallets.
• The political parties can show how if we Remained they would in their different ways make the country better.

Conclusion

Revocation without a prior referendum would be dangerous. There is no legally valid plan on the table for carrying it through safely. We should continue to campaign for a referendum – a People’s Vote.

The blogs page of London4Europe is edited by Nick Hopkinson, Vice-Chair. Articles on this page reflect the views of the author, not necessarily of London4europe.