64

Note: this is not a question about whether Brexit is a good or bad thing. Keep answers impartial please.

It is quite obvious that the current British government negotiating Brexit terms has a very weak mandate. It is also obvious that while there (still) is support for leaving, the concept of “leaving” has a very different meaning depending on who you ask. Therefore it is likely that any deal with the EU is effectively vetoed by one cross-party alliance or other.

Given that (and given that the European counterparts in the negotiations really would have preferred a remain win), is it possible or even plausible that the UK will somehow retract its invocation of Article 50?

(I realize that there would be a heavy political price to pay. Assume a PM who thinks it’s worth that price.)

Clarification: I'm not asking about whether or not the UK and EU can reconcile. (That's certainly possible given a decent amount of good will.) I want to know if internal UK politics can possibly allow an "un-triggering" or if too much formality and pride is in the way.

  • 11
  • Follow up thought on that: does the monarch technically have the power to just decide "no, were not going to do that," assuming she was willing to pay the political cost of such a unilateral decision? – Anthony Dec 15 '17 at 5:17
  • @MartinSchröder so it is a clear option but not a realistic one. I like the idea of laying out all the feasible (meaning well-defined or indisputably present) options and discussing why each one would or wouldn't work for political/historical/social reasons. That seems more of a useful approach than "will the EU allow it because reasons" or "a second referendum might happen because the first one was dodgy as fuck". What are the actual options and what are their costs? – Anthony Dec 15 '17 at 6:35
  • Also, please be patient with me as there are some legit mechanical details of the whole situation that I'm ignorant to. If I ask a dicey question about whether the UK can repeal brexit legally, it's in part because I legit am not clear on the process of how these things work as well as being unsure how much further the UK has committed to brexit within its own legal/political system. I get that a referendum can be ignored, but what about any bills or votes since the referendum. – Anthony Dec 15 '17 at 6:42
  • "does the monarch technically have the power to just decide". I'm no constitutional lawyer, but doesn't the Queen have to sign off on Acts of Parliament. In which case, in theory she could refuse to sign off on the various Brexit bills. Having said that, given that her constitutional role would disappear as the UK came closer to being in a United States of Europe I imagine she's quietly a Brexiteer. – br14 Dec 17 '17 at 20:35
16

It is 'unrealistic'

Whilst results of a referendum aren't legally binding (the government can ignore them) in reality I can't see a party willing to ignore the results without having an, unlikely, second referendum to recount it.

Brexit resulted in more than a few resignations. Backing it for a second referendum would carry much too high a risk for most, I imagine. Backing out on the results of a referendum, however, would be of a similar scale of career/party suicide.

There are prices a party is willing to pay but for the Conservatives to give Labor the chance to claim that Tories will only ignore the voice of the people is a step too far.

A possibility:

If a smaller party, lib dems lets say, went into elections with the policy that they will back out of brexit and came into power then their winning vote could be seen as a psudo-referendum and the backing down could come into play.

  • 2
    Nice. Have it be some dark horse party's mandate. But it would require that voters were so eager for repeal that a majority would throw theIr support for a party that they may not otherwise endorse. They might as well call themselves the "anti brexit" party and only run on that platform. (in the states, a third party is lucky if it can significantly impact the outcome of the main candidates, so I have trouble imagining a third party actually winning even if everyone agrees with their main message). – Anthony Dec 15 '17 at 6:10
  • 2
    I thought that was Lord Buckethead's position. – Simon Richter Dec 15 '17 at 10:47
  • 1
    @HenningMakholm Yes, they are so you could still count it as throwing a vote away if they have no chance of winning in your constituency. But in Scotland the SNP have a chance of winning constituencies but not of forming government on their own so they wouldn't be a throw-away vote. – Lio Elbammalf Dec 15 '17 at 19:01
  • 1
    +1 For answering the question as asked (about a "realistic" take on things). – Ludo Dec 15 '17 at 20:04
  • 2
    @gbjbaanb, that's not entirely true. Ed Milliband ruled out a referendum. telegraph.co.uk/news/politics/ed-miliband/10691404/… And the Conservative commitment to a referendum was less about UKIP than about the long seated divisions over EU membership within the Conservative Party itself. – Jontia Jul 2 '18 at 8:42
43

On 2018-12-10, the European Court of Justice decided that the UK can withdraw from the process of leaving the EU, without requiring the other members’ consent, until either an agreement has been finalized or the two-year term since invocation of article 50 has passed.

This was my old answer as of 2017-12-14 (addressing the first version of the question, before it was clarified to be about internal UK dynamics only):

From a legal point of view, it is not clear whether the UK could or could not unilaterally retract its invocation of article 50 (i.e. despite opposition from the other member states). The article is rather vague and doesn’t address special cases. Allegedly, unnamed “top legal experts” have advised the UK government that it is possible, while the government’s public position is that it is not; this latter view is again supported by other legal experts (example). In the end, the question would be for the Court of Justice of the European Union to decide.

On the other hand, it seems clear that, under article 50, the UK and the 27 other states could unanimously decide to stop the Brexit process and let the UK remain a member. It is conceivable that some of the member states might give their consent only in exchange for certain concessions from the UK; e.g., regarding the UK’s “Thatcher rebate” or the status of Gibraltar.

  • 28
    I don't think "the government’s public position is that it is not" is quite correct: the government's public position is that it is irrelevant whether or not it's possible, because as a matter of policy they will not retract it. – Peter Taylor Dec 14 '17 at 16:04
  • 3
    Could the UK be compelled to leave and re-enter the EU, thereby losing its opt-outs? – Kevin Dec 14 '17 at 18:47
  • 1
    @Kevin That's should be a new question. To which the answer is it's technically possible, if one or more of the governments of the EU27 decided to be obstructive enough. – origimbo Dec 14 '17 at 19:22
  • 6
    @Kevin - worth noting that the UK cannot rejoin the EU at present as it does not meet the requirements for entry as it has too high a proportion of unelected lawmakers. – James Snell Dec 16 '17 at 13:14
  • 2
    @Jontia - I got the information from Parliamentary debate recorded in Hansard. As I understand it the source for the point raised relates to potential problems Britain may have meeting the Copenhagen Criteria, which are probably the keywords you need when searching. Though amusingly the first link I got searching came back to this question. – James Snell Jul 2 '18 at 9:27
17

It's possible.

Article 50 is entirely reversible, according to the man who actually wrote it. So if the government of the day decides to halt Brexit, at any point up to the final signatures which conclude Brexit, they are legally allowed to do so.

Why might this happen? Well...

  • The referendum was very close, at 51%:48%. The turnout was 72%, which is good for a referendum but much lower than the Scottish independence referendum. If there was a second referendum, it wouldn't take many people to change sides, or many extra people to vote, to change that decision. Many countries who use referenda require higher percentages to carry a vote for change, to ensure the change is unambiguously supported by the country as a whole. The Brexit vote did not do this.

  • Both sides of the campaign were led by Tories, and other parties played very little part in campaigning. As such, it was widely seen as an unofficial internal leadership contest within the Conservative party, as well as a vote of confidence on David Cameron, who was not popular at the time. As an internal Conservative party matter, this reduced voter engagement.

  • Remember how the referendum was carried out. There was a shortage of independent sources for voters to check against, and those that did exist were widely trashed by popular media sources owned by a small number of anti-EU billionaires (and one Australian in particular) for whom Brexit was definitely in their best interest. There were outright lies on both sides, certainly, but it's impossible to hide the extent to which the Leave side took this - the "£350m a week" claim is perhaps the most obvious.

  • Some consequences of Brexit are already becoming apparent. Fruit pickers have stopped coming to Britain, and EU medical staff are leaving. As these consequences take effect, people will have an opportunity to look at whether this is what they actually want.

  • As the facts on the ground become clear, it is possible that public opinion may change. As an example, remember that Section 28 had widespread popular support at the time, but within only a few years was popularly seen as unjust. If it becomes clear that popular opinion is strongly against Brexit as we approach the final steps, it is entirely possible that a second referendum may be ordered.

  • The latest Brexit bill has established that Brexit will require Parliament to vote for it. It would clearly be political suicide for an MP to disregard the votes of their electorate (although it would not be unheard-of!). Based on the current referendum, it seems unlikely that they would vote it down, but if there was a second referendum which established that the British people had changed their collective mind then equally they would be unlikely to vote in favour.

  • 6
    "It would clearly be political suicide for an MP to disregard the votes of their electorate" is clearly not true, or a lot of the current Tory MPs would not be. – Peter Taylor Dec 15 '17 at 7:16
  • 6
    I'm afraid I feel I need to downvote this. From a legal point of view, it is simply incorrect. The opinion of a person who drafts a clause carries little legal weight, particularly (as in this case) when that person is a diplomat and not a lawyer. Whether or not it is possible to withdraw is a matter for the European Courts. There is plenty of legal opinion opposing Lord Kerr's viewpoint. In my answer here I outlined some reasons why I think it may not be possible to withdraw. Either way, the issue is not certain. – JBentley Dec 15 '17 at 9:50
  • 3
    @mcottle TBH, considering the extent of the outright lies from the Murdoch papers and the Leave-campaign Tories, any Russian involvement is basically lost in the noise floor. And whilst it's kind of satisfying to see the Tories involved getting their comeuppance, it's less satisfying to know it's at the expense of us. – Graham Dec 15 '17 at 12:18
  • 3
    @Graham That's largely irrelevant. We're talking about an issue of legal interpretation. Courts give very little weight to that sort of thing. Of far more importance is the interpreted intent in the actual wording of the clause i.e. what the wording suggests the intent was. Sometimes courts will give some weight to official transcripts (e.g. of Parliamentary debates, when we're talking about UK law) but not if the wording clearly contradicts it, and certainly not an off-the-cuff remark printed in a national newspaper. In this case the wording of Article 50 implies the opposite intent. – JBentley Dec 15 '17 at 13:23
  • 4
    @Graham "It's not just his opinion. He explicitly says that this was his intent at the time the clause was drafted." That should not be a part of an answer. Whatever was his intent at the time, and whether or not he is truly revealing that intent is irrelevant if he didn't explicitly put it in words when he wrote the article. Countries had to discuss and vote these articles. One cannot write a vague article, wait for it to be voted, and then wander around claiming that it has to be interpreted this or that way once the case arises that it's invoked. – ksjohn Dec 15 '17 at 13:44
9

Let's ignore "realistically" because that's a matter of opinion.

To the question: Can the UK back out of Brexit? the short answer is yes.

The longer answer is that once Article 50 is invoked, it is like a train on a track. Apparently it can be halted - though we'd be venturing into unknown territory legally. Still what the EU wants the EU gets.

Otherwise, as things stand the UK carries on and legally leaves the EU on March 19th 2019 with or without the UK Parliament agreement to a deal.

As far as "realistically" is concerned, and now we get into opinion, it's a tough one. Getting the 27 to agree to cancel Brexit is probably a no brainer - after all they're about to lose a lot of money. I don't think reversing Article 50 would be an issue, but it would come at an economic and political (EU wise) price.

The UK political cost is difficult to quantify and possibly difficult to over-estimate. As things stand the Tories would likely lose a significant portion of their vote and be unelectable. The Labour Party would also probably lose a fair percentage of their vote because unlike at the most recent election, I think they're now seen as anti-Brexit (IMHO). The political ramifications of ditching Brexit against the express wishes of a majority don't bear thinking about. My sense is that people are polarized on the issue and Leavers would switch allegiance to any party offering a Leave agenda (i.e. campaigning on a promise to vote through an exit via Parliamentary means) even if they have to hold their nose.

As for another referendum - if the elites thought they could win it, they'd already be planning for it. Of the polling I've seen most Leave voters have not changed their minds - and are unlikely to do so regardless of the consequences. If they didn't believe Camerons fear agenda in 2016, they're not likely to believe future scare tactics - especially since economically things actually seem to be getting better (yes I know that's not entirely true factually, but it is the impression that counts). And it's worth considering how many of those who did believe Cameron's fear agenda and voted Remain would switch and vote Leave. Not a poll I'd gamble on.

The problem now is that having opened Pandora's box then - whatever happens with Brexit - I'm not sure the lid can be shut. Somehow the country has to be carried along with any decision either way and that seems unlikely.

Having said the above, I've thought since day one that Brexit would never happen. Just not sure how it will be stopped, and I shudder to think what it would mean for the UK.

  • 2
    economically things actually seem to be getting better, citation needed. Wages are still going down in real terms. – gerrit Dec 15 '17 at 11:49
  • 3
    @gerrit While it's true that wages are still going down in real terms, the complete crash which the electorate was told would happen has not happened. Things are going along much as they were; employment numbers have improved. Nor has WW3 happened -- but that will start in the Pacific anyway. – Andrew Leach Dec 16 '17 at 11:47
  • 1
    "yes I know that's not entirely true factually, but it is the impression that counts" - pure gold – benxyzzy Dec 16 '17 at 12:56
  • 1
    @gerrit So no-one can claim anything (including wage pressure) because nothing is a result of any Brexit impact. – Andrew Leach Dec 16 '17 at 23:11
  • 1
    "Wages are still going down in real terms" - true but nothing to do with Brexit. The number of people in work has risen significantly fallen. That's usually a positive indicator. – br14 Dec 17 '17 at 20:27
6

Yes. It would be a difficult road though, as there is essentially only one path, though two methods to travel it.

The key is that they cannot ignore the results of the referendum, and they cannot hold a second referendum without something significant changing.

So in order to reverse course, they have to have a second referendum, and in order for that to happen some significant change has to occur that would mean things have changed enough to indicate that the first referendum is no longer representative of the changed will of the people due to the new circumstances.

There are two things that could be considered a big enough change that would permit a second referendum:

General election with significantly different results

The first would be for a general election to take place, and it would have to happen soon. This would require a motion to pass in the House of Commons with a two-thirds majority – rather a long shot, considering that more than half* of MPs are members of the Conservative Party.

If this did happen, one party would have to explicitly stand on a Remain platform. And, of course, that party would need to be the one that wins. This would be cause for a second referendum.

(source, * Note that as of the 2017 snap general election the conservatives have won, but they are 8 seats short of a majority now)

So if a party ran on a platform of "remain" and won the general election, they could call for another referendum without making people think you can just keep holding referendums and ignoring the results until you get the results you want.

Note that in 2017 the UK held a snap general election, and while things were shaken up and the conservatives lost the majority, the results of the election don't suggest that the will of the people has changed drastically enough to support a new referendum.

This path, therefore, is very unlikely.

EU offers a better deal

People for brexit voted to leave largely because of issues they had with sovereignty and immigration.

If the EU really wants them to stay (and in word they've said they do, but they haven't yet offered significant concessions) and alters the deal with the UK enough, there would be reason to proffer a new referendum.

It can't be simple small concessions, though, they would have to be broad and sweeping.

This is unlikely, but it's still a possibility. The EU knows this, and knows that they could easily win the brexit supporters over if they eliminated or severely restricted immigration requirements, and gave up more of the political power they've accrued over the years. This is not ideal for the EU, though, as they want an even playing field and playing favorites - such as permitting the pound to still exist - has caused no small amount of friction within the EU.

Both the UK and EU continue down the path of Brexit, and to some observers who believe neither are truly willing to give up the existing relationship it appears to be a game of high stakes chicken, each waiting for the other to "come to their senses" and make the concessions necessary to reestablish the relationship.

Nevertheless, it's a real possibility.

Edit:

Another referendum has become much more likely. The parties in power have changed quite a bit, but probably not enough alone to trigger a referendum.

However, these parties are now very concerned about a hard (ie, no agreement) transition, and are now publicly stating they would not oppose - and some would welcome - another referendum.

The new referendum couldn't push off the due date, though, so it would essentially be the decision between a hard (no agreement) exit, or staying in the EU.

https://www.bbc.com/news/uk-politics-47363307

  • 8
    Re: "The EU [...] could easily win the brexit supporters over if they eliminated or severely restricted immigration requirements, and gave up more of the political power they've accrued over the years": I don't think so. Most of the supposed sovereignty issues were outright lies by the Leave campaign rather than actual matters of EU law. As long as liars keep lying, no changes to EU regulations will be enough to change what Brexit supporters believe. – ruakh Dec 14 '17 at 23:56
  • 3
    @ruakh I'm not going to argue the validity of the brexit supporter's beliefs here. But I reject your overall assessment. If the last line said, "No changes to EU regulations will be enough to change how brexit supporters vote ." then that would be worth arguing in these comments because it directly opposes my arguments. As it is your comment dances around my assessment without directly attacking it. I suspect, however, that it's too complex to argue in comments - I strongly suggest you make the same argument as an answer to the question, with references, showing that it's impossible. – Adam Davis Dec 15 '17 at 16:22
  • 1
    @ruakh the idea that the Leave campaign lied their heads off and everyone believed them, is pretty much debunked. Both sides told as many exaggerations as they could get away with, and I expect Cameron's official leaflet swayed more people to vote Remain than any Leave message did. One thing is certain though, tell the British people that they got it wrong and to try again, and the bloody-minded sods will definitely vote Leave regardless of what they think, just out of "screw you"-ness – gbjbaanb Dec 16 '17 at 0:24
  • 1
    @Adam Davis, Sorry but I don't agree 'that more than half of MPs are members of the Conservative Party.' . There are currently 316 Conservative MPs out of a total of 650 seats (although Sinn Féin have 7, and they have a policy of absence). The Conservatives are the largest single party, they have less than half the seats, and with out the support of the DUP they do not even have a Parliamentary majority – Stormcloud Dec 16 '17 at 19:46
  • 1
    @Stormcloud "Cameron claimed that "he could have avoided Brexit had European leaders let him control migration", according to the Financial Times. However, that offer had not been made by the EU, as confirmed by Angela Merkel to the German Parliament: "If you wish to have free access to the single market then you have to accept the fundamental European rights as well as obligations that come from it. This is as true for Great Britain as for anybody else."" - from en.wikipedia.org/wiki/… – Adam Davis Dec 18 '17 at 13:47
5

The UK cannot back out of Brexit without the EU agreeing.

There are currently negotiations going on that are supposed to end in March 2019. If more time is needed then all sides together can agree to negotiate a month longer. Or a year. Or 100 years. That's not what's supposed to happen, but what could happen if everyone agrees. So even if Brexit couldn't be stopped, it could be stopped in practice.

I'm not sure whether Brexit could be cancelled if everyone agrees with the current laws. But again, if everyone agrees then EU laws can be changed, so in practice, Brexit can be cancelled even if the laws today say otherwise.

Update: On Dec. 10th 2018, the European Court of Justice decided that until the 29th of March 2019 the UK and unilaterally back out of Brexit, without the EU member states having to agree.

3

High ranking EU politicians have said that Article 50 can be cancelled. The EU would likely accept it as they have stated many times that they would prefer the UK to stay.

The UK would be in a difficult position. The EU is moving on with reforms and further integration, which the UK doesn't want. There is also the weakened political position and loss of influence. But even so, those things would likely be a lot less bad then Brexit. Financial institutions and businesses would mostly welcome it; few were in favour of Brexit to start with and stability and continuity are their primary concerns.

In the UK itself it would create a huge political row. Likely destroy the Tory party for at least a decade, probably more. But if it happened the Tory party would probably have little say in the matter anyway.

The most likely way it could happen is May's government falling and whoever takes over deciding that there isn't enough time left to do a proper trade deal.

Update:

A European Law Officer has issued an judgement that the UK can back out unlaterally. While not binding, the courts usually follow these judgements and if push came to shove would likely make the same ruling.

This is a very significant development and means that Article 50 can almost certainly be withdrawn by the UK, with the UK returning to exactly how it was before with the rebate and other opt-outs intact.

  • 1
    Any possiblity of the UK remaining in the EU, will result in the EU stopping the UK doing a "proper trade deal"......... – Ian Ringrose Dec 14 '17 at 16:05
  • 2
    -1, withdrawal of the notice is not a matter for the EU to "accept" or not accept. It is a legal matter that would have to be determined in the European courts, and opinion is divided on which way that would go. Also I'd point out (though not downvote worthy by itself), that "Article 50 can be canceled" involves a misunderstanding of terminology. Article 50 is a treaty article. "Canceling" it is meaningless in this context. I think what you meant is withdrawing the notice that was submitted in accordance with the terms of Article 50. – JBentley Dec 15 '17 at 9:57
1

The Labour Party could end Brexit and still might.

The Europeans want us in and are prepared to jump through semantic hoops to allow it. The Labour Party has a huge proportion of young voters who are said to be in favour of staying in Europe. Corbyn, the anti-EU Labour leader, will ultimately defer to this major interest group if it means winning a General Election. A fudge (British for unprincipled snafu-like solution) will get him elected if he gets the chance.

I have put a clothes peg on my nose and joined the Labour party. So that seals it.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .