25 March 2019

Public Law for Everyone: Revoking Article 50: Legislating to take a no-deal Brexit off the table

Professor Mark Elliott discusses the legal option for revoking Article 50 — a possibility that has risen up the political agenda in recent days, not least in the light of a petition signed by approximately 5.5 million people.

Importantly, whereas the agreement of all other Member States would be needed for a further extension, the EU Court of Justice held in the Wightman case that the UK can unilaterally revoke Article 50.

From all of this, it follows that if Parliament really wishes to take a no-deal Brexit off the table, it needs to ensure that leaving without a Withdrawal Agreement ceases to be the default option — and that it can only do this by legally precluding a no-deal Brexit. How might this be done? The first point to emphasise is that any revocation of Article 50 would almost certainly require legislation in the form of an Act of Parliament. While it is strongly arguable, as Robert Craig has explained, that no legislation was needed to authorise the Government to seek an extension, the same is not true, for reasons set out by Gavin Phillipson and Alison Young, of revocation. Parliament’s role, if Article 50 were to be revoked, would thus be indispensible.

However, this only gets us so far. It is one thing to say that Parliament would have to act, by way of legislating, if revocation were to be rendered a legal possibility. But what if Parliament were to decide that it did not merely wish to make revocation possible, but that it wished to go further by insisting upon revocation in the absence of a withdrawal agreement, so as to provide an absolute legal guarantee that there would not be a no-deal Brexit?  [...]

Conclusion

The enactment of legislation along the lines outlined in this post is doubtless highly unlikely. However, if Parliament really does wish to wrest control of the Brexit process from the Government, and if it really does wish to guarantee against a no-deal Brexit, it may have little option but to contemplate enacting such legislation. If it is introduced into Parliament and voted on, it will force lawmakers to confront matters with a degree of directness that has so far been wholly lacking.

It is one thing to ‘rule out’ a no-deal Brexit by means of supporting an amendment to a motion or disapproving of a no-deal Brexit by means of an ‘indicative vote’. But such interventions by Parliament do not alter the legal position, and therefore leave the Article 50 clock undisturbed as it ticks towards a default no-deal Brexit on 12 April. Instead, it is only by means of a Bill along the lines set out above that Parliament could truly rule out a no-deal Brexit. There has been a great deal of noise in recent weeks about Parliament’s desire to ‘take charge’ of Brexit given the Government’s apparent paralysis. The introduction of a Bill ruling out a no-deal Brexit would be an interesting acid test of the genuineness of that desire.

Full analysis

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