ewan mcgaugheyThe UK now has no bargaining power and time is running out. Ewan McGaughey (King’s College London) makes the case for revoking Article 50 and sets out four ways in which it could be done. Revocation is the best way to give the UK time to think, reflect, and find a way forward.

The UK’s uncodified constitution is opaque, but it’s stronger than the transient inhabitants of state office. While Theresa May told us last Wednesday, ‘I am on your side. It is now time for MPs to decide’, a petition to revoke article 50 reached half a million signatures. Now it’s five million and counting. This isn’t binding, but whether or not MPs are forced to vote on May’s Withdrawal Agreement a third time, they will also decide what’s next. The best option is to revoke article 50.

Even if you support Brexit, time to reach a negotiated arrangement is better than the current state of duress, where you have no bargaining power. (If you really want – though I don’t recommend it – Article 50 can always be triggered again.) ‘No deal’ will probably mean an economic crash worse than 1720, casualties from halted medicine, a risk of renewed armed conflict in Northern Ireland, and the break-up of the UK through Scottish independence.

But how could article 50 be revoked? People who support Brexit-at-any-price (a dwindling minority) may argue to make it as hard as possible. Those arguments should be treated with caution, because in a constitutional crisis, it would be unacceptable to crash out of the EU because of any supposed procedural obstacle, technicality or mistake. There are four main options:

  1. the Prime Minister writes to revoke article 50
  2. the House of Commons replaces the Prime Minister after a no-confidence motion with someone who revokes article 50
  3. the House of Commons, through the Speaker, notifies the European Council that article 50 is revoked
  4. Parliament passes a fresh Act to revoke article 50. An Act may be desirable, but it’s not necessary.

1. The Prime Minister writes to revoke article 50.

Under the European Union (Notification of Withdrawal) Act 2017 section 1, Parliament gave the Prime Minister the ‘Power to notify withdrawal from the EU’. A basic legal principle is that when someone has a ‘power’, its use involves discretion ‘according to the rules of reason and justice, not according to private opinion’. Section 1 is expressly framed in the manner of international law negotiations, empowering the PM to communicate an ‘intention’ to negotiate withdrawal from the EU. This necessarily entails the right to revoke that notification, now that MPs have rejected the deal. Like in any contractual dealing, this right to revoke is clear in international law (Vienna Convention on Treaties article 68). So, a first way to revoke article 50 is simply for May to write another letter, because pausing Brexit has become the majority will of the British public, which Parliament represents.

2. The Commons replaces the Prime Minister after a no-confidence motion with someone who revokes article 50.

It is possible, of course, that May refuses to follow the will of the people, and threatens the UK’s economic and territorial integrity with ‘no deal’. A ‘no confidence’ motion by the Commons could lead to a general election under the Fixed-Term Parliaments Act 2011 section 2. But this is not necessary if a new government forms in two weeks. A motion may also simply express ‘no confidence’ in the PM, rather than the government. Upon this, the PM must offer her resignation to the Queen. If there is a ‘failure to respond to a Commons vote’ this is a ‘manifest breach’ of constitutional convention. The monarch must remove her, and appoint a new Prime Minister ‘who can best command the confidence of the House of Commons’. The ex-PM may give suggestions, but these don’t need to be followed. Once a new PM is in place, they can revoke article 50.

3. The Commons, through the Speaker, notifies the European Council that article 50 is revoked.

Because time is pressing, it may not be convenient to remove the Prime Minister. So is it possible for the Commons to bypass her, and resolve to revoke notification of article 50? Because our constitution is uncodified, the answer is not clear-cut. The PM serves at the pleasure of the Commons. But common law says that conduct of foreign relations, or making treaties, is part of the ‘royal prerogative’, today exercised by the Prime Minister on behalf of the Crown.

However, the common law, including the royal prerogative, is subject to principles of equity, as developed by the Lord Chancellor until our courts of law and equity were merged from 1873. Near the end of Robert Walpole’s administration as the first Prime Minister, the Lord Chancellor Hardwicke said it ‘cannot be disputed’ that ‘wherever a certain number are incorporated, a major part of them may do any corporate act’: Attorney General v Davy (1741) 26 ER 531. Lord Hardwicke LC was talking about a church, but at the time he was reflecting how the Commons worked before Prime Ministers existed. He expressed an equitable principle for all social bodies, just as William Blackstone wrote about the law of all persons, Parliament and corporations included. So an argument can be made that the Commons by simple majority may perform executive functions, in the exceptional case that the PM is disabled from functioning: see by analogy Barron v Potter [1914] 1 Ch 895. One option is to simply issue a binding instruction to the Prime Minister to revoke. But if urgent, on a majority resolution, the Speaker, John Bercow, might write to the European Council himself. An example letter could read like this:

Dear President Tusk,

Notification of an intention to leave the European Union was delivered on 29 March 2017 by the Prime Minister of the United Kingdom, who serves at the pleasure of the House of Commons. The House of Commons wishes to inform you, in accordance with our constitutional requirements, that this notification is revoked with immediate effect. We apologise for any inconvenience caused.

Yours Sincerely,
The Speaker of the House of Commons

This strategy, however, would meet serious objections. It’s not clear that the Commons, as opposed to the Queen-in-Parliament as a whole, can be seen in law as a corporate entity in itself, and this runs against the orthodox understanding of the Prime Minister’s exercise of the prerogative. Other options are better.

4. Parliament passes a fresh Act to revoke article 50

A fourth option is that Parliament legislates to revoke article 50 through a new Act. This requires three readings in the Commons and the Lords, as well as royal assent, and so it takes time. However, the benefit of using legislation is that it removes power from the executive. This could be desirable, but it does not appear necessary.

A contrasting view was suggested by the European Court of Justice’s Advocate General Campos Sánchez-Bordona in Wightman v Secretary of State for Exiting the EU (2018) C 621/18. The Advocate General said because triggering article 50 required Parliament’s authority, it was ‘logical, in [his] view, that the revocation of that notification also requires parliamentary approval’. This seems to have conflated two different things: Parliament did not itself trigger article 50, but instead empowered the executive to do so. This was needed because the Miller case said triggering article 50 risked depriving citizens of rights guaranteed by Acts of Parliament. That requires a new Act. Revoking article 50 threatens nobody’s rights.

A much more cogent argument has been made by Professors Gavin Phillipson and Alison Young that an Act may be needed because revocation might ‘frustrate’ the European Union (Withdrawal) Act 2018. Sections 1 and 20 originally set ‘exit day’ as 29 March, but this can be amended at the discretion of the Secretary of State. Section 13 says there must be ‘Parliamentary approval of the outcome of negotiations with the EU’. Phillipson and Young argue, following R v Home Secretary, ex parte Fire Brigades Union [1995] UKHL 3, that if we revoked article 50 we would frustrate the intention of Parliament because we may never have exit day. A first problem with this argument is that ‘exit day’ under section 1 has not been commenced. Everything else (sections 8-25) is merely preparatory to this, and it is possible to prepare for an exit day that never happens. Under section 25(4) section 1 is not ‘triggered’ and there is no ‘exit day’ until ‘such day as a Minister of the Crown may appoint’. By analogy, the public sector equality duty in the Equality Act 2010 section 1 was never commenced because Theresa May called it ‘ridiculous’. This was regrettable, but it is not clear that May ‘frustrated’ the Equality Act 2010.

Second, even if section 1 had been commenced, revocation does not mean there will never be exit day, because article 50 could be triggered again. Third, upon revocation of article 50 exit day could simply be delayed pending repeal of the Act: this could not be reasonably considered to frustrate anything. Just as no referendum can rule the living forever from its grave, the keystone of our constitution is that no Parliament can bind a future Parliament.

Fourth, the express scheme of the Act shows that ‘Parliament has retained ultimate control over the UK’s withdrawal’ including the possibility that ‘exit day’ could be indefinitely delayed. In the FBU case the Home Secretary (Michael Howard) had a statutory duty to introduce a criminal injury compensation scheme, a duty that was frustrated if the scheme was never introduced. But nobody has a duty in relation to exit day. Parliament gave ministers the power to amend exit day in any way precisely because, to paraphrase Lord Nicholls in the FBU case, the ‘range of unexpected happenings is infinite’, a ‘serious flaw… might come to light. An economic crisis might arise. The government might consider it was no longer practicable, or politic’ to continue. An Act might be desirable to revoke article 50, but it is not necessary.

We must defend constitutional flexibility

Just like a choice between ‘my deal or no deal’, a government that suggests there are no alternatives to this political crisis, and that we cannot revoke article 50, is not being straight with you. Our political constitution is flexible, it evolves, and it can respond to times of pressing social need. The revocation of article 50 is the best way to give the UK time to think, reflect, and find a way forward. As human beings we tend to make mistakes and say things we regret when we are under pressure, or when we are being pressured. One of the great Conservative Prime Ministers, Benjamin Disraeli, once warned of becoming ‘two nations; between whom there is no intercourse and no sympathy’. To go forward as one nation, we need revocation.

This post represents the views of the author and not those of the Brexit blog, nor the LSE.

Ewan McGaughey (@ewanmcg) is a senior lecturer and teaches constitutional law at the School of Law, King’s College, London.

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