Last week, in response to a petition seeking a referendum on the final deal, the government not only refused to allow “the people” to decide on the terms of Brexit, it categorically stated that parliament will not be allowed to do so either. Parliament will instead be given what it calls “a meaningful vote … either [to] accept the final agreement or leave the EU with no agreement”.
This is the opposite of “meaningful”; the government intends to refuse parliament the chance to reject both options – it must accept what is offered or take nothing at all. And this is the government’s position, irrespective of the dire consequences for our country or “the will of its people” to avoid them. Even though the UK could before March 2019 change its mind, the government says that it will on no account let that happen.
The reason given for this is said to be the government’s “firm policy” that “there must be no attempts to [reverse the referendum and] remain inside the European Union”; the government does not deny that reversal is legally possible. Its position accords with advice, which I am told from two good sources the prime minister has received, namely that the article 50 notification can be withdrawn by the UK at any time before 29 March 2019, resulting in the UK remaining in the EU on its current favourable terms. Such advice would also accord with the view of Lord Kerr, who was involved in drafting article 50, of Jean-Claude Piris, former director general of the Council of the EU’s legal service and of Martin Selmayr, a lawyer and head of cabinet to the president of the European commission.
As a lawyer, I agree with them. 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 In law, an “intention” is not a binding commitment; it can be changed or withdrawn.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 (or seek the consent of the other member states to stay), then article 50(5) would have referred not just to the position following withdrawal, but also following notification. Such an interpretation is in line with the object and purpose of article 50.
The EU’s competences are based on the consent of its member states. The authority to increase or reduce these competences is within their hands. Article 50 is an example of the principles of consent and conferral; it confirms the right of a member state to withdraw from the union. In the words of the German federal constitutional court in the Lisbon case, the “right to withdraw underlines the member states’ sovereignty… If a member state can withdraw based on a decision made on its own responsibility, the process of European integration is not irreversible”. The purpose of article 50 is therefore to confirm in express terms the member states’ ability to withdraw from the EU and to lay down the procedures for doing so. By confirming the right of states to withdraw from the EU treaties, article 50 maintains the right of states to change their mind on withdrawal, as provided for in article 68 of the Vienna convention on the law of treaties.
I have today sent a freedom of information request to the prime minister seeking disclosure of the legal advice and asking her to waive any privilege and release it in the greater public interest. It is important that this advice is made available to the British public and its representatives in parliament as soon as possible. At any point from now, but certainly when parliament is finally faced with the likely reality; a bad deal or no deal at all, it must act in the interests of the people and order the prime minister to revoke the notification. It can do this whether or not the government says so; parliament is sovereign – in constitutional theory at least, it controls the executive; not the other way round.
There is no time to waste. After 29 March 2019, the UK will no longer have this option (unless time is extended, which requires unanimity of the EU 27). It will have to reapply for membership – the special advantages that we currently have are likely to be lost.
The British public needs to understand that there is now a small window of time in which we still have it in our power to retain the fundamental rights and freedoms that the EU treaty guarantees us, our children and our businesses and in so doing, to protect the future happiness and prosperity of our country.
Jessica Simor is a QC at Matrix Chambers
