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Brexit means Brexit, Theresa May, the prime minister, has declared. Conventional wisdom is that the UK government will therefore invoke Article 50 of the Lisbon treaty some time in 2017. This would set in motion an irreversible process leading to departure, an unprecedented act in the six-decade history of the EU.
But what would happen if the UK changed its mind after invoking Article 50? [...] the legal question deserves to be considered, given that two years is a long time in politics. Some lawyers argue that invoking Article 50 triggers an irrevocable process. Third parties — individuals, companies or states — will respond accordingly, entering into or ending contracts, making or forgoing investments. But the interpretation of the process as a one-way path does not appear to be legally correct.
First, as everyone agrees, the decision to invoke Article 50 is a unilateral act that does not depend on what other member states think or do. The sole condition is that the interested state must act “in accordance with its own constitutional requirements”.
Second, the Article 50 procedure provides for notification by the interested state only of its “intention” to leave. Formal notification of that intention would be made to the European Council, comprising the heads of government of the other 27 member states. In law, the word “intention” cannot be interpreted as a final and irreversible decision. Legally, you may withdraw an intention, or change it, or transform it into a decision.
Before Brexiters cry “foul”, it is worth noting that according to the treaty, there are only two events that lead to Brexit.
Triggering Article 50 allows talks to begin in order to negotiate and conclude a “withdrawal agreement” with the EU (only on the terms of the divorce; not on post-Brexit relations). As a treaty, its entry into force would require ratification by the House of Commons. That entry into force would entail Brexit.
The second event entailing Brexit would be if the withdrawal agreement had not entered into force two years after the triggering of Article 50, as a result of a lack of agreement between the EU and the UK.
It is only at the date that one of these two events occurs that “the [EU] Treaties cease to apply to the State in question”. Before that date, despite having expressed its “intention” to leave, the UK remains a full member state. At the date of one of these two events, Brexit would happen and the UK would be outside the EU.
In both cases, it is after Brexit that the UK, having become a “third state”, would formally negotiate with the EU new arrangements on its relationship, such as trade, participation in the single market and movement of labour.
So how would all this work in practice? Let us assume Mrs May invokes Article 50 on January 1 2017. Imagine that, one year later, the UK changes its mind, for whatever reason. This could be after a big political event such as the election of a new government, a new referendum or second thoughts about the decision to leave.
Nothing in Article 50 would then prevent the UK from deciding, in conformity with its constitutional requirements, to withdraw its unilateral “intention”. In legal terms, this would stop the two-year clock, removing the possibility that Brexit would occur automatically after these two years. Paragraph 5 of Article 50 confirms this interpretation: an ex EU member state can be a candidate to rejoin but only after having withdrawn. If the intention to leave was withdrawn, the process would be interrupted and the status quo ante would prevail. The UK would still be in the club.
[...] legally the fact is that the referendum was consultative, and that both the UK government and Parliament may change their views or may decide to hold a second referendum.
Full article on Financial Times (subscription required)