The 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:
- the Prime Minister writes to revoke article 50
- the House of Commons replaces the Prime Minister after a no-confidence motion with someone who revokes article 50
- the House of Commons, through the Speaker, notifies the European Council that article 50 is revoked
- 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.
“‘No deal’ will probably mean an economic crash worse than 1720”
Grow up. We were told that voting Leave would cause an economic crash and a rise in unemployment in the following two years. In reality we now have record employment.
The fact that you believe that No Deal Brexit would cause an economic crash worse than 1720 shows that you are delusional and the rest of the article confirms this.
“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 the ECJ ruled that revocation should be “unequivocal and unconditional”, meaning that the UK could not simply revoke Article 50 in order to buy more time and then resubmit it at a later date. How come I as a retired engineer have a better grasp of this than you a senior lecturer in constitutional law?
Perhaps you are just a retired engineer, and I guess you have not read Article 50 of the Lisbon Treaty. It states very clearly:
“1.Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” We created those ‘constitutional requirements’ with the results of the referendum which, although only advisory, was voted on in Parliament and made a ‘constitutional requirement’.
You also misunderstand the phrase “unequivocal and unconditional” in relation to revoking Article 50. This simply means that no conditions can be attached to that revocation. It does not mean that Article 50 cannot be invoked again is the UK chose to do so.
It’s just a bit rude to say “just a retired engineer”.
Unconditional means without condition, correct.
Unequivocal means leaving no doubt. So, a country cannot revoke it, then invoke it again a few months or even a few years later. The processes of Article 50 are not intended to be operated like the Hokey Cokey.
I dare say any educated person such as a retired engineer would know that.
‘We were told that voting Leave would cause an economic crash and a rise in unemployment in the following two years. In reality we now have record employment.”
Britain hasn’t left yet. So ‘project fear’ can’t have happened yet. That’s logical, isn’t it?
This is of coarse expected to have happened and not by mistake.
Taking no deal off the table of coarse has taken away the bargaining power.
The stupidity of Parliament is two fold, falling for the trick set by remainers who knew removing no deal would result in this kind of article.
Weakening the PM’s arm and then blaming her for coming back with nothing!
Much more importantly this article is aimed at overriding the biggest democratic vote in living history.
It fails to address the high probability the the public will conclude that their vote is meaningless.
Parliament is not the only body who demand a meaningful vote.
Apart from the high probability of civil unrest around the U.K. by revoking the public will never trust anything a politician says ever again.
Politicians have shown themselves to be self serving and not the servants of the electorate, as it should be.
The serious long term risk is that in the future a government could be elected by as little as 20% of voters ( because of mistrust and meaningless vote)
that opens the door wide for extremism powered by passion.
Very very dangerous!
Leave must happen else the above will happen.
What is more, revoking now will double the bullying and double the dictatorial elements of the unelected leaders of the EU.
Powers will be taken away from the U.K. ( admited given current parliament behaviour not a bad prospect)
But at least we can remove our government if we disagree, we cannot do that in the EU.
If remoaners want to be part of Europe and want another day. Then let’s hold another referendum after we have left.
After we have left we will all know more. We will know if the project fear is truth or lies, we will know if leave actually was a lie.
We will be able to negotiate our terms in exchange for our money.
It’s so important to have our own control.
1- “Weakening the PM’s arm and then blaming her for coming back with nothing!” She spent two years negotiating with the EU and came at the last moment to present a terrible deal to the parliament? You call that weakening her arm?
2- “high probability the the public will conclude that their vote is meaningless.”
How do you consider that revoking article 50 would say so? Do you truly believe that if another referendum happened today the results will be the same? Everyone on both sides of the argument know that a new vote will have a completely different result since the public now properly understand what does Brexit mean. The first referendum was a complete joke! How do you ask the public a very important question that will change the destiny of the country without having them informed about everything related to it.
3- “revoking now will double the bullying and double the dictatorial elements of the unelected leaders of the EU.”
It is really easy to brainwash the public in one way or another and this proved my second point. Bullying and dictatorial elements? This entire Brexit process have proved the amount of gain that the UK had being part of the EU and that’s part of May’s deal. We want one step out of the door but we also want to stay in! Unelected leaders of the EU!!!??? Haha that is amusing to read!
4- “hen let’s hold another referendum after we have left.”
The fact that you think it is that easy, proved how people who voted leave know nothing about the process of leaving the EU or being part in it. Countries apply for the EU membership and it takes them years and years to be accepted (if they even got that). It isn’t like a press of a button! If you think that Brexit has been painful, you can safely double it for the process of joining the EU
Jimmy
I yea of poor memory.
Firstly the EU would not even discuss the withdrawal agreement for over a year until the bribe money was agreed.
It’s wrong to say that she has negotiated for two years, nearer one.
If you believe the TM has sat at a table for that year you are.wrong , she had a negotiating.
team.
So it’s a fact that the EU wish to preserve their gravy boat and prevent others who want to leave from doing so.
So your answer to the Eu blocking a UK deal is aahhh ok we will stay.
In my full time job of negotiating business deals I always have a trump card of walking away.
If my opposition don’t want my money I’ll spend it with someone who wants it and is willing to do something in exchange for my money.
Simple really!
The number of times a deal has gone to the brink are countless,
The number of times I come out on top are equally countless.
If I sit at a table and say I want a deal but I will never walk away my opposition will go out a buy the Champaign.
Yes she was weakened. By the remainers who knew what they were doing.
If we hold another referendum and it is close with a narrow majority to remain, I assume that like all referendums they will remain advisory and under the remainers rules if it’s close we can ignore it.
If it isn’t close then we can go next of three when the remainers know what they are voting for!
I can here you say that you know what your voting for, wrohong!
No one know the final deal until the final deal is done, two or three years from now.
So how many questions to the plebs can we get on the referendum paper.
Stay?
Leave?
Mays deal?
Corbin’s deal?
Erg deal
Hard deal
Soft deal
Alistair Campbell and tony Blair deal ( oh sorry their not in government my mistake)
Let’s have parliament and the lords decide!
Eeerrrmm maybe not. P up in a brewery comes to mind!
We have an opportunity to trade on our terms with the rest of the world we should grab it.
Of coarse it would be easy to rejoin if the U.K. public want it.
The United States of Europe only want our money!
And in the future will be even more desperate when the euro collapses after bailing out most of its members.
“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’”
Until another referendum the default “will of the people” is to leave
I don’t think option 3 (Speaker) works. In international law, the government speaks for a state. And the EU works the same way.
At no stage has it been anything other than absurd to see a 52% majority in an advisory referendum as obliging the UK to undergo massively impactful constitutional change.
“At no stage has it been anything other than absurd to see a 52% majority in an advisory referendum as obliging the UK to undergo massively impactful constitutional change.” But it’s what nearly everyone on the Remain side said before the referendum. For example read the following BBC article published two weeks before. https://www.bbc.com/news/uk-politics-eu-referendum-36457120 Nobody in that article was suggesting then that a Leave vote should just be overturned by parliament.
“At no stage has it been anything other than absurd to see a 52% majority in an advisory referendum as obliging the UK to undergo massively impactful constitutional change.”
The Maastricht Treaty caused massive constitutional change. We were not even allowed a vote on it and now it has made it extremely difficult for us to leave the EU. 52% in an advisory referendum looks like a great advance on the 0% non-advisory non-vote on Maastricht
“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’.”
I’m not a lawyer, so to me we can essentially summarise this as “some lawyers think the PM can revoke Article 50 without parliamentary approval, some think s/he can’t”. It seems to me to follow automatically that any attempt to unilaterally revoke Article 50 will result in a court case, or indeed two court cases, one before the Supreme Court and one before the European Court of Justice. These court cases may both come to the same conclusion as the author of the original article, or they may not. Is there really any potential Prime Minister who is going to want to take that kind of gamble?
If parliamentarians really are convinced that Article 50 should be revoked and are willing to take the consequences, they should do that by Act of Parliament. I think that would be a profoundly mistaken decision, but at least it would be legally clear.
Unless the dialogue I’m having with my MP, who is also Financial Secretary to the Treasury and Paymaster General, brings some clarity as to what the constitutional requirements would be for Article 50 notice to be validly revoked, I’m intending to bring a judicial review claim that I hope will bring about the necessary clarity.
Schrödinger’s Brexit
https://johnallmanuk.wordpress.com/2019/04/14/schrodingers-brexit/
At the moment, I’m trying to find a solicitor.
The uncertainty suits Mrs May. It enables her to threaten equally those who oppose her deal because they want to remain, and those who oppose her deal because they think no deal would be better than her bad deal.
Sure we can revoke article 50, just as King Charles I could dissolve parliament.
To revoke Article 50 is the best way to give the U.K time to think and reflect and find a way forward.
“The UK now has no bargaining power and time is running out”
How defeatist! Time is running out because the UK Parliament enacted that time would run out, according to Article 50 of the EU. Time ought to have run out 5 days ago, actually, on 29th March.
The EU’s “bargaining power” is (as a late British king once put it) the intimidation of a “might is right” argument.
The only remaining obstacle in the way of an orderly and amicable Brexit, is the EU’s malicious insistence upon the weaponisation of the Irish border, which Theresa May will go down in history as a buffoon for having failed to call for the bullying it was.
The longer they drag it out, and play dirty, the more the EU’s true colours will become visible. The new Roman Empire’s inclusiveness will purport to use its franchise, purported copyright, or patent rights, to say that peace and prosperity are its intellectual property. Want peace? Then call Rome. [packshot] Pax Romana. Selling peace to peaceful British peoples who didn’t realise they had to buy it from anyone since 55 BC. (Terms and conditions apply.)
n 2016, the night before the referendum that divided my family, I admitted that goodies could easily be tricked, no fault of theirs, into wrongly voting Remain, for the noblest of reasons. and that quite a lot of baddies would cast useful votes for Leave, but for embarrassingly bad reasons. At that stage, I wasn’t even sure that the first European nation to reject the EU would lead the way for others. I’m sure now though, now that I’ve seen EU use Ireland as a weapon to stop Brexit. Such white-collar terrorism must be opposed. How could we possibly stay in an EU that tried on tactics like that? We simply have to call their bluff. There’s nothing left but “no deal”.
Which part of EU’s “backstop, or no deal” ultimatum didn’t you understand? How can UK possible respond, but by saying “no deal”? Because Ireland matters that much.