Since triggering Article 50 in March, the British government’s position on Brexit has appeared unshakeable. In the words of a DExEU (Department for Exiting the European Union) spokesperson, “The British people voted to leave the EU and we will deliver on their instruction. There can be no attempts to remain inside the EU and no attempt to rejoin it.”
However, claims made in an article published at the weekend appear to contradict the government’s rigid stance that Brexit is irreversible.
Writing in the Guardian, British lawyer Jessica Simor QC, from Matrix chambers, claims she has been informed by “two good sources” that Theresa May has received legal advice informing her that “the Article 50 notification can be withdrawn by the UK at any time before 29 March 2019 resulting in the UK remaining in the EU on its current favourable terms.”
Simor has since submitted a Freedom of Information request to the Prime Minister’s office seeking publication of the legal advice, “in the greater public interest”.
Simor’s request will provide some hope to pro-remain MPs looking to persuade the government to soften, or even rethink its Brexit position as fears grow that exit talks with Brussels are heading for failure.
But if the advice Theresa May reportedly received does indeed state that the process could be stopped if deemed to be in the national interest, how easy would it be to halt the Brexit juggernaut?
Euronews spoke to David Allen Green, author of forthcoming Oxford University Press book, ‘Brexit: What Everyone Needs to Know’. He had this to say;
“Nobody knows for certain if Article 50 is revocable. It would be an issue for the European Court of Justice, and there has not yet been a decision.”
“Regardless of the legal position, the government has adopted a firm policy decision that Article 50 cannot be revoked.”
And if the government decided to reverse its policy on Article 50?
“If the revocation was unanimous, there would be no legal or practical issue. It only becomes an issue if the revocation purports to be unilateral.”
Government unanimity is currently in short supply when it comes to Brexit, with the referendum vote that split the country reflected in the division of MPs into increasingly fractious factions on all sides of the debate. But what if one group managed to wrest control and reverse the decision widely heralded as “the will of the people”?
David Allen Green’s opinion is that “on balance, Article 50 is probably unilaterally revocable, but there are good legal arguments either way.”
While several EU leaders have suggested that there is a way back for the UK, the government’s willingness to deviate from its chosen course, publicly at least, appears lukewarm. The current timetable will see MPs vote next autumn on whatever deal the Prime Minister manages to extract from Brussels. But with a just a year to go until that crucial vote and exit talks already well under way, is it simply too late to withdraw the Article 50 notice?
Anthony Woolich, Partner and Head of Competition and Regulation at international law firm HFW, told Euronews, “If the right to withdraw the notice were challenged before the European Court of Justice, the timing of the change of intention may be important. The earlier that withdrawal of the notice takes place, and the less disruption that has been caused, the more likely the Court would be to support a withdrawal of the notice.”
It would appear then that the biggest hurdle to reversing Brexit at this stage is political rather than legal. But given the majority of people voted in the referendum to leave the EU, would any government be brave enough to ignore the will of the 52%, or would a second vote even be required before they could do so?
“A second referendum or another general election would not be required under EU law”, says Anthony Woolich. “From the UK government’s perspective, the 2016 referendum was only ever advisory, not binding. Politically, however, the UK government may take the view that it requires the mandate of a second referendum before withdrawing the Notice.”