MPs could block Theresa May's Brexit plan

[shenmue]

http://www.bbc.com/news/uk-politics-43023051

[regnaD kciN]

1. Doesn't matter what they do...

They can defeat any given Brexit plan. They can call a new referendum, and have Remain win. Article 50 has already been triggered, and can't be undone. After two years, Britain has one of two choices: accepting a "Brexit plan" which sets out new treaty agreements with the EU, or exit on much-less-favorable WTO terms. What they can't do is just say, "Oh, forget Article 50, we've decided to stay." The only way they can be part of the EU after 2019 is to petition to (re)join it, just like any other non-member nation. That requires unanimous approval from the twenty-seven remaining EU nations, and if you don't think at least one will veto it "just because," I have a bridge you might be interested in. Even if, somehow, EU leadership could convince every nation to allow the U.K. back in, it would certainly come with new terms that wouldn't included the concessions they were given the first time around -- say, this time, they'd have to drop the Pound and adopt the Euro -- which would be thoroughly unacceptable to the Brits.

No, sorry, it's too late for regrets. It became too late the moment May sent the Article 50 letter. There's no turning back now. Britain will just have to make the best of a bad situation.

[DavidDvorkin]

2. I thought that was legally up in the air

Whether Article 50 can be unilaterally revoked by the UK or not.

[TubbersUK]

3. As I understand it, there's an ongoing debate re whether article 50 can be revoked n/t

[regnaD kciN]

4. It's a Catch-22...

The only way it can be revoked is if the EU sets precedent that it can be revoked. Which, once again, requires a unanimous decision of the member nations…just as re-admitting the U.K. would take. If one's going to get blocked, even if by only a single nation's veto, so will the other.

[Denzil_DC]

5. I don't know where you think you got your info, but it's nowhere near as clear-cut as you claim.

Not least because we may have triggered Article 50, but we haven't left the EU yet.

According to the guy who actually drafted Article 50, we can reverse the process, but then, what would he know, right?

Brexit is reversible even after date is set, says author of article 50

The former diplomat who drafted article 50 says the UK could opt to reverse Brexit up to the moment we leave, even if a date for the country’s departure from European Union were added to the withdrawal bill, as Theresa May plans.
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Lord Kerr, a former UK ambassador to the European Union, said Brexiters in May’s cabinet were suggesting Brexit was irreversible and thereby misleading the public.

...

Speaking on BBC Radio 4’s Today programme Kerr, now a crossbench peer, said the UK could still opt to stay in the EU. “At any stage we can change our minds if we want to, and if we did we know that our partners would actually be very pleased indeed.”

He added: “The Brexiters create the impression that is because of the way article 50 is written that having sent in a letter on 29 March 2017 we must leave automatically on 29 March 2019 at the latest. That is not true. It is misleading to suggest that a decision that we are taking autonomously in this country about the timing of our departure, we are required to take by a provision of EU treaty law.”

https://www.theguardian.com/politics/2017/nov/10/brexit-date-is-not-irreversible-says-man-who-wrote-article-50-lord-kerr

There's much legal debate (usually focusing on whether the UK could reverse course unilaterally), and if it did happen, it would most likely require the consent of the other EU members (and no doubt a punitive quid pro quo to stop the UK any other member using such a declaration as a bargaining tool in future), and since there's no precedent, possibly decisions by European courts on the matter. Here's four legal opinions by European law experts:

Stefan Enchelmaier, professor of European and Comparative Law at Oxford University, argues that the essential requirement of withdrawing from the EU is the simple desire to leave. "If you look at Article 50, first you have the decision to withdraw, then you have the intention to withdraw," he says. "No withdrawal without notification, but, the other way round, no withdrawal without the intention to withdraw." If public opinion reversed and the UK wanted to remain, therefore, this would legally be possible.

Kenneth Armstrong, professor of European Law at Cambridge University, says this is the "dominant legal opinion" on the subject and the authors of the Article are in agreement.

However, Article 50 is not very well written. There is no explicit provision for this. Equally there is no precedent for withdrawing from the European Union, so there is little to go on. Jan Komarek, a lecturer at the London School of Economics' European Institute and Department of Law, says that, as Article 50 is "silent" on whether a withdrawing member state could change its mind during the negotiation period, lawyers would have to look for other examples in international law. Under the Vienna Convention, for example, a "fundamental change of circumstances" is grounds for withdrawing from an international agreement, provided "the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty".

In other words, if the UK no longer consents to being part of the EU, it may leave the EU. If that situation changes and the UK decides to remain, it may remain. "When a state which is party to an international agreement wants to revoke the agreement and then wants to revoke the revocation of the agreement, that is possible according to the Vienna Convention," Komarek says.

http://www.politics.co.uk/comment-analysis/2016/12/12/can-we-withdraw-article-50-once-we-trigger-it-probably-yes

This is also allegedly the finding of a controversial legal opinion the government's trying hard to keep secret because democracy and the Will of the People:

It’s official: Article 50 can be withdrawn

Jessica Simor, of Matrix Chambers which was co-founded by Cherie Blair, has said she believes the document that signalled the withdrawal process from the European Union can be reversed.

She also claims to have been told by two sources that Theresa May has been advised Britain is not legally bound to quit the EU.

Writing in the Observer Ms Simor said: “Article 50 provides for the notification – not of withdrawal but of an ‘intention’ to withdraw.

“In law, an ‘intention’ is not a binding commitment; it can be changed or withdrawn. Article 50(5) is, moreover, clear that it is only after a member state has left that it has to reapply to join. Had the drafters intended that once a notification had taken place, a member state would have to request readmission.”

http://www.theneweuropean.co.uk/top-stories/it-s-official-article-50-can-be-withdrawn-1-5229073

This is also the opinion of the European Commission:

EU confirms Article 50 can be reversed — just not by Britain alone

The EU has confirmed the UK cannot unilaterally reverse Brexit – while simultaneously leaving the door open for Britain to remain part of the European Union.

...

In a fact sheet released on Wednesday, the European Commission stated that “it was the decision of the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed”.

...

Indeed, French president Emmanuel Macron said last month that the door was “always open” for Britain to remain in the EU.

His comments were echoed by German Finance Minister Wolfgang Schaeuble, who said that “If they wanted to change their decision, of course they would find open doors, but I think it’s not very likely”.

https://uk.news.yahoo.com/eu-confirms-article-50-can-reversed-just-not-britain-alone-212840345.html

Late last year, a Brexit Minister was forced into an embarrassing apology to the House of Lords for making a claim like yours:

Brexit minister apologises to peers for saying article 50 cannot be revoked

Lord Callanan, who was appointed a Brexit minister last month to replace Lady Anelay, who stood down for health reasons, has just apologised in the House of Lords for telling peers last week that article 50 could not be revoked.

Asked a week ago today to confirm that the supreme court, in the Gina Miller case, said article 50 was irrevocable, he said: "I can confirm that. It is also stated by the European commission that article 50, once invoked, is irrevocable unless there is political agreement on it."

...

And today Callanan did apologise. In a statement to peers, he said that his statement last Monday was incorrect. That was a result of “a misunderstanding of the question”, he said.

"To reiterate, for the avoidance of any doubt, the supreme court proceeded in the Miller case on the basis that article 50 would not be be revoked, but did not rule on the legal position regarding its irrevocability. It was, and remains, the government’s policy that our notification of article 50 will not be withdrawn ... I recognise that my comments have caused confusion and I apologise to the House."

https://www.theguardian.com/politics/blog/live/2017/nov/20/brexit-bill-voters-will-go-bananas-if-uk-offers-40bn-to-eu-former-tory-minister-warns-may-ahead-of-key-meeting-politics-live?page=with:block-5a12f26160526906e8cba106#block-5a12f26160526906e8cba106

In an attempt to clarify the situation, the EU Parliament drafted a resolution:

Brexit can be stopped after Article 50 is triggered, EU politicians say

Britain will have the option to reverse Brexit, European Union lawmakers are set to announce.

The European Parliament is drafting a resolution as a response to Theresa May triggering Article 50 and beginning the formal process of exiting the EU.

The resolution will provide the UK with an option to halt the Brexit proceedings as long as other members agree.

Donald Tusk, the European Council President, said he was sure the other member states would support Britain if it had a change of heart.

http://www.independent.co.uk/news/uk/politics/brexit-stop-article-50-leave-eu-politicans-donald-tusk-philippe-lamberts-michel-barnier-european-a7655166.html

[TubbersUK]

9. Good summary n/t

[Denzil_DC]

11. Thanks.

I found some more to add to the mix earlier today (thought I'd add it here as these arguments come up time and time again), which is less wishy-washy than I was above.

Jean-Claude Piris is, to quote his Twitter bio, "French. Consultant EU law and International law. Former Director General of the EU Council’s Legal Service from 1988 to 2010" (he's been a lot more, but it's a bit of a mouthful, so see below*):

Link to tweet

Steve Bullock @GuitarMoog

I've always argued that withdrawing Art50 notification successfully was (unusually) primarily a political rather than a legal question 5/

JC Piris @piris_jc

But it is legally possible to!nobody could expel the U.K. if it decided to remain according to its constitutional practice before 29th March 2019. Unilateral choice. The 27 cannot impose any condition

Juho Romakkaniemi, current Head of Cabinet for the Vice-President of the European Commission, chimed in:

Link to tweet

Juho Romakkaniemi @Romakka

Of course. If Britain decides and notifies before March 31st 2019 that it does not want to leave, that’s enough: #Brexit van be cancelled by a single letter. It’s in the end of the day a political, not a judical decision.

Link to tweet

…

* "Jean-Claude Piris served as the Legal Counsel of the Council of the EU and Director General of its Legal Service from 1988 to 2010. He is an Honorary French Conseiller d'Etat, a former diplomat at the UN and the former Director of Legal Affairs of the OCED. He was the Legal Advisor of the successive intergovernmental conferences which negotiated and adopted the treaties of Maastricht, Amsterdam and Nice, the Constitutional Treaty and, finally, the Lisbon Treaty. He was also Senior Emile Noel Fellow and Straus Institute Fellow at New York University."

[Denzil_DC]

6. Shenmue, I've suggested to you before that it's a good idea to post more than just a link in an OP.

In this case it matters a lot, as some of the other people responding seem to be assuming the article says MPs could block Brexit altogether, which they no doubt could, but isn't on the cards, currently at least (italics below mine):

Pro-European Conservative MPs could join forces with Labour to block the kind of Brexit Theresa May wants, a Tory rebel has warned the PM.

Anna Soubry claimed there would be a Commons majority against leaving the single market and customs union.

Labour's Chuka Umunna, appearing alongside Ms Soubry on the Andrew Marr show, agreed with her comments.

MPs have been promised a "meaningful vote" on the terms of Brexit before it happens in March next year.

There are precedents for countries being in the single market and customs union while not actually being EU members. That's what Soubry's suggesting - a "soft Brexit", as opposed to the "hard Brexit" (no single market, no customs union membership, maybe some relationships) May seems to be heading for (if she doesn't go for the plain "no deal Brexit" it's been suggested she may be favouring recently, cravenly buckling under pressure from the hardline Leavers in her party).

[shenmue]

7. I posted the title the way it was. People are capable of reading for themselves

[Denzil_DC]

8. OK, but how much extra effort would it be to post a few paragraphs?

Or do you just want to mess with people?

I seldom click through when people don't bother posting an excerpt in an OP. I usually figure if they can't be bothered posting more than a headline and a link, it can't be that important, and click out straight away.

As a matter of etiquette and consideration to others, it's not a great deal to ask, is it?

[TubbersUK]

10. They are, but posting a few paragraphs is helpful n/t

[LeftishBrit]

12. Hope so!

Unfortunately, too many of them are running scared of the tabloids.