30

Assume that:

  1. The UK withdraws its Article 50 notice (or purports to do so) as the ECJ says it can.
  2. The UK waits for whatever length of time is politically expedient. Optionally, the UK holds a "people's vote" at this step, or does other things that would reasonably affect Brexit negotiations such as holding a general election.
  3. The UK sends the EU notice pursuant to Article 50 that it intends to withdraw from the EU.
  4. Said notice expressly disclaims that it is in any way a continuation of the previous Brexit process.

Does the "clock" start over at two years, or would the UK still have to leave in March 2019?

And if the clock does not start over, what if step 2 takes so long that it's April by the time we get to step 3?

  • 1
    Not an exact duplicate, but this question and its answers address this question, too: politics.stackexchange.com/questions/28131 – bytebuster Dec 9 '18 at 9:17
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    Legally: Unclear. Politically: The EU has always made it clear that they would welcome the UK back if it retracted A50. The EU is not going to force the UK into a Brexit against its will. – Martin Schröder Dec 9 '18 at 13:30
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    @Taladris: Anywhere from a day to several months, depending on what Theresa May (or her replacement) finds politically expedient. – Kevin Dec 9 '18 at 17:21
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    I'm no political expert, but I seem to recall the Advocate General's recommendation specifically said "if they reject article 50 entirely in good faith" Waiting a minimal amount of time and/or immediately holding a second referendum on the same topic hardly seems like good faith to me. – Steve-O Dec 9 '18 at 17:39
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    The ECJ has ruled it can indeed revoke Article 50 unilaterally, confirming the opinion of the advocate-general. You may want to edit this into your question for posterity. – gerrit Dec 10 '18 at 8:27
27

This would probably end up in the Courts.

Assuming the ECJ concurs with the Advocate General, the decision to revoke an Article 50 notification must be done in Good Faith, and following proper constitutional processes.

The ruling from the ECJ does not mention "Good Faith", but instead requires the revocation to be

unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.

A country that revokes the article 50 notification only as a delaying tactic is not acting in Good Faith, and the revocation is not unequivocal as it does not bring the process of withdrawal to an end. The ECJ could rule that it was a "stunt" and not recognize it. On the other hand, if proper constitutional processes are followed, it might be allowed. One can imagine the EU27 allowing for a delay of several months for a second referendum, especially if they believe that it will result in the UK remaining in the EU.

In the situation you describe: revoking and the re-invoking months later, it would be clear to the that the revocation was not intended to bring the process to an end and was merely a delaying tactic and it would the be up to the EU27 whether to allow the UK further time to negotiate or require the UK to leave at short notice.

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    The ECJ just concurred with the Advocate General, I read just as I click on this question. – Zach Lipton Dec 10 '18 at 8:08
  • From the EU court of justice twitter account: "UK is free to unilaterally revoke the notification of its intention to withdraw from the EU – Case C-621/18 Wightman" – thosphor Dec 10 '18 at 9:02
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    Note that this answer has been superseded by the ECJ judgement, which does not mention good faith. – Peter Taylor Dec 10 '18 at 17:27
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    @thosphor "Free to revoke" and "free to extend indefinitely through this hack" are not the same, though. If it stays revoked, that's possible -- but this question asks if, in addition to revoking it, they can re-notify later to "reset the clock". – Nic Hartley Dec 10 '18 at 17:52
  • @NicHartley Good point, but I was just giving more info on the recent ECJ ruling. – thosphor Dec 11 '18 at 10:47
9

If the UK and most but not all of the EU27 agreed that they need the extra time, maybe. (If all of the EU27 agreed, there would be easier ways to extend the negotiation.) If it was the UK idea to follow the letter of Article 50 while breaking the spirit, I would guess no.

  • I believe that most of the people and governments in the EU27 would have preferred it if the UK had stayed as a member.
  • That being said, the continuous opt-outs, rebates, and other special pleading got on people's nerves.
  • There is an EU parliament election in May. The current assumption is that the UK are out by then. Changing things now will have all sorts of consequences.
  • The next seven-year financial financial framework is being negotiated. If the UK wants to get back into these negotiations with the plan to leave before the framework is over, people will be not amused.

So if the only reason to pull this stunt is to get two more years of internal British logjam, the EU27 would find ways to make their displeasure felt.

5

Right now we are still waiting for a final, 100% decision whether the UK can withdraw its Article 50 notice at any time. This is due soon. Update: We are not waiting anymore, that decision has been taken.

Politically, the EU wants to avoid a situation where the UK leaves without any deal (worst outcome for everyone, even though some in the UK think it's not), so if no deal is signed on March 28th then the UK doesn't have to leave. They have an alternative which I think most on the UK would think is better. I think the EU has also stated that an extension of the time frame would be accepted without a problem, so on March 28th the UK could say "give us three more months".

The only reasonable way to withdraw from the Article 50 notice is for the UK to take a good time to decide what they really want, and what is really achievable, and then either stay in the EU, or give a second notice, but this time fully prepared, with a deal in hand that can be accepted really quickly. And since the proposed deal contains a "transitional period" to the end of 2020, that "transitional period" would likely not be needed, with the earliest realistic date for a new notice say end of 2019, with a leaving date around end of 2021.

2

The European Court of Justice today gave its judgement in Wightman and others (C-621/18). It states (my emphasis):

Article 50 TEU (…) allows that Member State (…) to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council (…). The purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.

So, if the UK revokes its notification, the withdrawal process is completely over. A later notification that the UK (again) intends to leave could therefore not “resurrect” the old withdrawal process, but would start a new one and a new two-year term for negotiations.

The Court did not make any reservations about the member state needing to act in good faith (unlike the opinion given beforehand by its advocate general).

1

Right now, there is a deal on the table. If the UK revokes its Article 50 notice, and re-submits another Article 50 notice a short while afterwards: what's to prevent the EU from saying, "We already have a deal negotiated!" and refusing to renegotiate?

So, even if the UK manages to restart the clock, the EU could refuse to open up the deal they have already reached.

Furthermore, this could also lead to legislation on the part of the EU to restrict submitting repeated Article 50 notices to a certain minimum period, e.g. an Article 50 can be submitted onces every X xears.

  • The other member states could even backtrack to a worse deal. – For the other idea: Changing primary law requires unanimity, so the UK would need to agree to this new minimum. – chirlu Dec 10 '18 at 19:01

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