12

Unless I've misunderstood the news months gone by, the UK has always requested an extension which has then been voted on by the other EU member states.

However I've also read that the UK can, at any time, revoke article 50 - without requiring the agreement or cooperation of the EU, the ball is firmly in our court, the power of revelation is the UKs.

With the UK able to cancel and simply reissue the article 50 notification as it sees fit, it seems needless to agree extensions. It also seems unusual that there is a default timeline given altogether (why say 2 years from submitting another article 50 notification to leaving the EU, if the leaving state can do as I've suggested). I understand that this may be a politically bad move (essentially the leaving state annoying the EU) but as negotiations continue it seems like there is little love lost anyway.

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    It also seems unusual that there is a default timeline given altogether (why say 2 years from submitting article 50 to leaving the EU, if the leaving state can do as I've suggested). – This deadline might also be in the interest of the leaving member state, since otherwise the remaining members could block the exit by not agreeing to any withdrawal agreement. It didn’t turn out that way in the current UK situation, but it could have. – chirlu Aug 28 '19 at 9:29
28

The ECJ decided

Article 50 TEU must be interpreted as meaning that, where a Member State has notified the European Council, in accordance with that article, of its intention to withdraw from the European Union, that article allows that Member State — for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired — to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements. 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.

Two interesting points here:

  • The revocation must be unequivocal and unconditional and
  • it must be in accordance with [its] constitutional requirements.

Revoking to prolong the negotiating period would fail at least in the first regard, possibly in both points. The question is, would the EU27 call it out or would it let the trick pass?

(By the way, revoking Article 50 means nobody can leave the EU any more. What you mean is revoking the Article 50 notification.)

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    At best, the fist point is valid until the next general election. No Parliament may bind another – Jontia Aug 28 '19 at 8:16
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    @Jontia, a state may enter binding international treaties and would be expected to abide by them, whatever their domestic rules say. – o.m. Aug 28 '19 at 15:08
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    @Jontia, I have no doubt the EU27 would let the UK leave. They may not offer a different Brexit treaty. – o.m. Aug 28 '19 at 15:56
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    @o.m. you really think any version of a withdrawal agreement would contain any version of "if this treaty or agreement is repealed or voided in any way, the UK reverts to being a member of the EU"? Nope. When out the UK is out, the agreements are about the relationships after the UK is out. – Moo Aug 29 '19 at 6:25
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    @Jontia ‘and the political relationship between the UK and the EU may be damaged’ – how much more damaged than the current state of affairs can the political relationship become? – Jan Aug 30 '19 at 21:26
8

Article 50 of the Treaty of the European Union indicates that an extension of the notice period requires the consent of all other member states:

  1. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

However, Article 50 says nothing about the retraction of any withdrawal notice. In that light, we go to the Vienna Convention on the Law of Treaties. Article 68 of the Convention states that:

A notification or instrument provided for in article 65 or 67 [invalidation, termination, withdrawal or suspension of a treaty] may be revoked at any time before it takes effect.

Of course, such a notification must be done in a manner that's consistent with the domestic law of the relevant country (UK law, in this case).

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    Why do you think the Vienna Convention is more relevant in this case than the ECJ ruling, which also gives a right to revoke? – o.m. Aug 28 '19 at 15:10
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    The ECJ's ruling is based on the Vienna Convention. – Joe C Aug 28 '19 at 19:21
1

Apart from the legal difficulties, cancelling and reissuing the article 50 notification will most likely amount to political suicide. Doing so is not a simple extension by a short while, it is an extension by two years as the process will start anew. Think about what will happen in this time:

  • The EU will still insist on the terms similar to those negotiated before. The only way for the UK to put pressure on the EU was the threat of having a hard Brexit, which you now removed (not that it worked so far), so there is no real chance to get a better agreement in your name.

  • While opinions differ whether Brexit will ultimately be good or bad for the economy, I think both sides will agree that the current uncertainty is not helpful. Think about what will happen if you extend the current chaos by another two years.

  • There will definitely be a snap election. The only thing that has prevented this in the last months was the fear that doing so will take to long and Brexit will happen while there is no government. Whoever was responsible for reissuing article 50 has at this point angered the leave camp by postponing everything by another two years, angered the remain camp by insisting on still doing so and angered everyone in between by effectively bringing Brexit to a total of half a decade of bickering and chaos.

  • Parliamentary elections won't be the only thing up for vote. Now that there is time, there will be new calls for a second referendum. Furthermore Scotland will try again for independence, this time with proper chances and Northern Ireland might similarly decide to solve the backstop problem once and for all by seceding and finally joining Ireland.

And there are probably a few other points I have missed. I am not saying that this will not happen, but even in the long sequence of stupid political moves that brought us to today, I would consider cancelling reissuing article 50 in the same move as a crowning achievement.

  • I think there have been no more snap elections because the Conservatives don't want to risk losing their majority to the Brexit party. Under Boris, they may go down that road. – JJ for Transparency and Monica Aug 29 '19 at 9:01
  • Two more years of uncertainty is still a lot better than the worst forms of Brexit. – Christopher Aug 29 '19 at 12:41
  • @Christopher Might be, but for this question it is actually irrelevant. From the start, the driving force for all people involved was never really "what's better for Britain", but "what's better for me (and maybe my party)". In the case of hard Brexit, you can deflect the blame toward someone else (pick one excuse according to political preference: EU didn't was unreasonable, parliament didn't accept the great deal, Brexit was stupid in the first place, etc.). In case you were the one extending the chaos for two more years, the whole blame is on you. – mlk Aug 29 '19 at 14:39
  • @Christopher actually, there's no guarantee that it would be two years. Under the terms of Art. 50, the exit date is "the date of entry into force of the withdrawal agreement," with a 2-year deadline if no agreement can be reached. (The deadline can also be extended with unanimous consent.) A country can invoke article 50 and then leave as soon as it can reach an agreement with the European Council. Theoretically, that could be the next day. The problem here is that such a course of action would generate a good deal of ill will and uncertainty. – phoog Aug 30 '19 at 19:40
-5

The EU wants to make it easy for members to stay, and hard for members to leave. If a member decides that the process to leave is too difficult, they are allowed to change their mind and stay under the same conditions as before.

The EU doesn't want a member to crash out without an agreement that is good for the EU. (The agreement might be good for the leaving member too, but that's the member's responsibility, not the EU's.) Imagine if the EU made it hard to leave AND hard to stay! What would a member do in that case? It would probably crash out without a beneficial agreement, and the EU doesn't want that.

  • I do wonder about your assertion there. Obviously any agreement that any party will agree to will have advantages for that party. Looking at the no-deal scenario, it should be rather clear than as good as any agreement has benefits for both sides a priori. I would think if Ireland (the island) and the border there didn’t exist, we wouldn’t be having all this discussion, the UK would have been thrown out in March – but because no Irish border also means no backstop we might well have a parliament-accepted deal and the UK having left in March. – Jan Aug 30 '19 at 21:30
  • @Jan I just watched a really good video about this. It's all about agreement. If the UK wants to cancel the Article 50 process, at the momemt the EU will agree and doesn't need to be asked. However, the date for leaving was agreed first at the start of the Article 50 process (2 years), then by extensions. – CJ Dennis Aug 30 '19 at 23:55

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