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This question already has an answer here:

Given that Brexit is something between the United Kingdom and the European Union, are there any leaders (I guess it would be May, if anybody) whom the EU recognizes as having the authority to cancel the UK's exit, regardless of whether they enjoy domestic support?

Or does the EU only recognize such a cancellation from/by the British parliament?

(Of course I imagine it would come at an insane political/legal cost at home, but I'm wondering if such a thing is possible as far as the EU is concerned.)

marked as duplicate by ouflak, Alexei, Philipp Mar 13 at 15:45

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    @Sjoerd: The answer there seems to address whether such a decision would be valid in the eyes of the UK, not the rest of the EU. (Also, it's about withdrawal, not its cancellation.) – Mehrdad Mar 13 at 0:52
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    If it's not valid in the eyes of the UK, then it doesn't matter what the rest of the EU thinks. The UK won't pay and won't follow the EU rules anymore, and the EU has no way to enforce its rules inside UK. (Your point about withdrawal, not cancellation is valid. I marked it as "possible" duplicate) – Sjoerd Mar 13 at 0:55
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    Of course it matters what the EU thinks: the EU is comprised of multiple international treaties, to which the UK is bound by international law, so if the EU ended up thinking that the UK still is bound to them while the UK didn't, well, that wouldn't be inconsequential, but rather, it would be a huge mess, with 27 countries thinking treaties are still valid against one thinking they're not. – LjL Mar 13 at 1:07
  • I think both questions are about the same thing: Can the UK government act on Brexit without the will and support of Parliament (or the people for that matter)? Both questions might get valid replies, but they will be answering the same thing, as the lone answer here already does. This is not the fault of your question. It is the fault of the ambiguity of UK governance and even EU law, neither of which really saw this coming. I'll see if anything unique comes up for this question and consider retracting (just now sorted out how to do it, it's not obvious). – ouflak Mar 13 at 8:21
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    This is not a duplicate, it's the opposite of the other question in an asymmetric situation. I suppose we'll find out one way or the other in a few weeks. – pjc50 Mar 13 at 17:15
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To make an Article 50 notification, the UK or any other state must act "in accordance with its own constitutional requirements." The UK can retract their Article 50 notification if that is "unequivocal and unconditional."

  • When the UK government made the (presumably valid) notification, they acted after a non-binding referendum and various decisions of parliament.
  • One could certainly argue that in the presence of UK law on Brexit, government action to retract the notification would not be in accordance with UK constitutional requirements and cannot be unequivocal.

I believe that the EU would leave the interpretation of UK constitutional requirements to the UK.

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I'm going to give the opposite answer to o.m.: the UK's traditional constitutional arrangement is that the executive has the negotiating power. Therefore the Government - and I think in fact the PM acting alone - could withdraw Article 50. The PM would probably then be forced to resign, although that's long overdue anyway given the number of spectacular vote defeats.

What's more of a problem is the Withdrawal Act and its effect on UK law (it has, and cannot have, any effect on the EU). It's rather hard to parse but my reading of that is that the commencement of section 1, Exit Day, depends on the action of a Minister. This may or may not already have happened.

(Other sections have already passed large amounts of lawmaking power to Ministers, which in the event of us actually leaving the EU effectively transfers authority from everything that was EU-governed directly to the PM. Not Parliament.)

Of great importance is the Wightman case. That was litigated on the opposite question: can Parliament unilaterally revoke Article 50? Consider para 105:

if, as a result of action carried out in accordance with its constitutional requirements (for example, a referendum, a meaningful vote in Parliament, the holding of general elections which produce an opposing majority, among other cases), the Member State’s initial decision is reversed and the judicial and constitutional basis on which it was sustained subsequently disappears, I also believe that it is logical, in line with Article 50(1) TEU, that that State can and must notify that change to the European Council.

This makes it quite clear that the state is separate from Parliament. Parliament can oblige the state to revoke article 50, but that's not the only route to valid revocation.

Also consider Miller: the government's case was that it could issue Article 50 without Parliamentary approval, but this was denied on the basis that doing so caused a change in UK domestic law and therefore required approval. Un-issuing article 50 should return us to the status quo, not changing UK law, and could therefore be done unilaterally by the government.

  • But the invokation of Article 50 is currently UK law, or am I mistaken? If I'm right, 'un-issuing' it would be a change to UK law. – ouflak Mar 13 at 11:57
  • It only says that the PM may issue the notification, not that she is obliged to. legislation.gov.uk/ukpga/2017/9/section/1/enacted – pjc50 Mar 13 at 13:03
  • I see. So you're saying she can 'un-issue' it? – ouflak Mar 13 at 13:48
  • Yes, that's my argument. – pjc50 Mar 13 at 14:40
  • I'm not sure we're that far apart. I believe that the EU would not second-guess the UK interpretation of UK constitutional requirements. But I guess a revocation of the Article 50 notification might contradict the EU (Withdrawal) Act 2018. The government acting to deliberately break laws would be an interesting position regarding "constitutional requirements." – o.m. Mar 13 at 15:54

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