Revoking Article 50: A victory for anti-Brexiteers or a struggle in vain?

By Skylar Cheng Geyu

On Tuesday, the 20th of March 2018, the Court of Sessions, Scotland’s supreme civil court, sparked hope among anti-Brexiters. The legal case presented before the court was headed by anti-Brexit lawyer Jolyon Maugham. Anti-Brexit campaigners wanted to establish that it was possible for Britain to unilaterally reverse the Brexit decision.

Initially, the case was rejected in a lower court. However, at 10 am BST on the 20th of March 2018, Mr Maugham tweeted out, “The Inner House of the Court of Sessions has given us permission. And recognises (in its judicial way) that the Government is speaking constitutional bunkum when it says that Parliament cannot decide that the country should Remain in the EU.” The very next day, a positive result was delivered as Mr Maugham tweeted, “Yesterday the Scottish appellate court recognised that Parliament may, and the Government may choose to Remain in the EU.”

How did this happen?

The referendum over the United Kingdom’s membership in the European Union took place on the 23rd of June, 2016. The unprecedented and unforeseen result in favour of leaving led to the popularisation of the term ‘Brexit’. The referendum did not come out of the blue, it was promised by former UK Prime Minister David Cameron in January 2013, on the condition that the Conservatives would win a parliamentary majority at the 2015 general elections. This was in response to the increasing anti-EU sentiments within his party and the growing popularity of the UK Independence Party (UKIP). Thus the stage was set long before the referendum itself.

Apart from The Economist, initial polls published by most other sources predicted a win for ‘Remain’ voters. On the very day of the referendum, What UK Thinks: EU and Elections Etc. forecast a four percent and 1.2 percent lead, respectively, for the Remain side. Many woke up the next day to the unexpected and shocking news that the UK is planning to leave the EU. ‘Leave’ had won about 52 percent of the votes, compared to 48 percent by Remain.

Why the commotion?

The referendum result varied depending on geography and demographics. In Scotland, especially, Remain was much more popular than Leave, with 62 percent of voters choosing the former. In Northern Ireland, 55.8 percent voted to Remain.

Based on age, almost 75 percent of voters aged 18-24 voted to Remain while the number dips to 35 percent among those aged 65 and above. In terms of education, more than 70 percent of voters with only a GCSE or lower level of education voted to Leave. On the other end of the spectrum, University graduates voted 70 percent to Remain. This referendum, among other things, fleshed out the dividing inequalities in the UK.

What is Article 50?

In order to leave the EU, the UK had to trigger Article 50 of the Treaty of the European Union, also known as the Maastricht Treaty, signed in 1992. Article 50 reads: “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” It also sets out the terms of negotiation and refers to Article 218(2) of the Treaty on the Functioning of the European Union. Section 3 stipulates a deadline of two years after notification is received by the European Council of the intention to withdraw.

This month, the European Parliament published a paper titled ‘The (ir-)revocability of the withdrawal notification under Article 50 TEU’. It specifically asked the question about whether the withdrawal notification is unilaterally revocable. This is the same question that was taken to the Court of Sessions.

In the paper, Ioannis Papageorgiou, of the Parliament’s Policy Department for Citizens’ Right and Constitutional Affairs, begins by pointing out the obvious—Article 50 TEU does not explicitly address revocation. Papageorgiou concludes from such ambiguity that it is thus only the European Court of Justice that can provide an authoritative ruling. “Given the fact that Article 50 does not make any reference to revocation issues, both sides of the argument can be defended.” On Page 23, the report further states that “[…] there is a predominant position that a unilateral revocation is within the right of the UK.”

So, is it a ‘Yes?’ Not really

It is important to keep in mind that once the notification is made, pursuant to Article 50, the pace and content of the process is entirely subject to management by the EU-27. This covers the other 27 member states and the EU institutions. Thus, the exit process is all about the way in which the EU-27 choose to act. The primary interests to be protected are those of the EU-27. Thus, to deduce a unilateral right of revocation contradicts the purpose of Article 50 itself. After all, a Member State cannot simply change its mind to join and leave as it sees fit.

If the final decision lies with the EU-27, the decision by the Court of Sessions seems insignificant. However, all is not lost. Lord Carloway, Scotland’s most senior judge who allowed the appeal for review to proceed, wrote, “Whether the CJEU will entertain a question of the type proposed is dependent on whether this court considers that there is a genuine dispute requiring settlement. If this court sought a reference, the CJEU would be bound to reply to the questions asked.” The decision by the Court of Sessions opens up the possibility of revocation.