affiliated to the International Association of Constitutional Law
It is, as the rather outmoded saying goes, a woman’s prerogative to change her mind; but what about the United Kingdom’s? Whilst there has been much academic discussion, not to mention one live and two threatened claims for judicial review, regarding the power to issue a notification pursuant to Article 50 of the Treaty on European Union (‘TEU’), less has been written regarding the effect of issuing such a notice and, in particular, whether and under what circumstances it can be withdrawn.
This is an important question, which should be answered sooner rather than later. Not only may the answer have a bearing on who has the power to issue an Article 50 notification, but more importantly it will to some extent dictate the way in which the UK is able to flex its diplomatic muscles during any future negotiations, be they with the EU or more informally with other Member States. In circumstances where the next Prime Minister is standing by the sound bite “Brexit means Brexit and we’re going to make a success of it” a proper understanding of the effect of issuing an Article 50 notification is of critical importance.
As with the issue of whether it is Parliament or the executive that has the power to issue a notification, the legal community is divided regarding the effect of a notification. My view is that an Article 50 notification can be withdrawn unilaterally at any point prior to the expiry of the two year guillotine imposed by Article 50. This article explores the reasons why as well as the practical and constitutional implications of that thesis.
Reading between the lines: Interpreting Article 50
Barber, Hickman and King in their powerful discussion of the domestic constitutional position argue that
“the first point to note about Article 50 is that it is a once-and-for-all decision; there is no turning back once Article 50 has been invoked.”
But is there? The, by now familiar, text of Article 50 reads,
As Barber, Hickman and King point out, reference to any right to withdraw a notification is “conspicuously absent” from that text. Nevertheless, in his evidence to the House of Lords Select Committee Professor Derrick Wyatt QC said,
“In my view a Member State could have second thoughts, and rescind its decision to withdraw at any time prior to conclusion of a withdrawal agreement or expiry of the two year period or any extended period agreed by the Member State and the European Council. I would offer three reasons. First, there is no indication in the wording of Article 50 that a Member State could not change its mind. Secondly, it would accord with the general aims of the EU to allow a potentially departing Member State to change its mind and remain in the EU after all. Thirdly, a conclusion that a Member State could not rescind its notification of intention to withdraw could have absurd consequences.”
By contrast, a Briefing Note produced by the European Parliamentary Research Service suggests that the two year guillotine has the effect of preventing the retraction of a notice save by an agreement between the withdrawing party, all other Member States and the EU institutions.
It is widely accepted and tolerably clear that an Article 50 notification may be withdrawn with the consent of all the parties. Indeed, any other interpretation would be absurd, given the ability unanimously to extend the period for negotiation under Article 50(3) and for states to rejoin the EU, albeit in accordance with Article 49, under Article 50(5). Unilateral withdrawal of a notification raises more difficult questions.
The interpretation of Article 50 TEU is a matter of EU law and as such is a question over which the CJEU regards itself as having exclusive jurisdiction (see for example case C-459/03). Whether or not Article 50 contains an implicit power to revoke a notification is thus a matter of EU (as apposed to Public International) law. As the CJEU has made clear, the founding treaties of the EU “established a new legal order” and the Court is not required to apply the Vienna Convention on the Law of Treaties 1969 (‘VCLT’) when interpreting EU treaties. However, in case C-410/11 the CJEU also stated at  that,
“even though the VCLT does not bind the EU or all its member states, that convention reflects the rules of customary international law which, as such, are binding upon the EU institutions and form part of the legal order of the EU.”
In so far is it reflects customary international law, the VCLT is thus binding upon the EU.
Articles 65-68 of the VCLT deal with procedure in relation to the invalidity, termination, withdrawal from or suspension of the operation of an international treaty. Article 65 sets out the requirements for making a notification, which (in accordance with Article 67) must be in writing. Article 65(1) requires that a notification set out the measure proposed to be taken (ie withdrawal) and the reasons for it. Article 65(2) then states that if, after a period of not less than three months after the receipt of a notification, no party has raised an objection, the party making the notification may carry out in the manner provided in Article 67 the measure which it has proposed. Article 67 requires that an act withdrawing from an international treaty must be carried out through an instrument communicated to other parties.
For present purposes, Article 68 VCLT is of particular note. It states,
“A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect.”
Before returning to the relevance of Article 68 in EU law, the wording of that provision itself requires consideration. When a notification “takes effect” is not entirely clear. There are two possible meanings, “takes effect” might mean that the notification has been communicated to the other parties in accordance with Article 65(1) or it might mean that the measure proposed has been carried out in accordance with Articles 65(2) and 67(2).
The wording of Article 65(2) gives a steer regarding which is the correct interpretation. Following the expiry of the notification period a party “may” (not must) carry out the proposed measure. Under the VCLT (unlike under Article 50) a notification has no binding ‘effect’. Rather, the notification only takes effect when the measure proposed is actually taken in accordance with Article 65(2). This interpretation is reinforced by Special Rapporteur Warlock’s commentary on the VCLT at YICL 264  which suggests that “take effect” means the termination of a treaty or the withdrawal of a party. Under the VCLT, therefore, a party may unilaterally revoke a notification to withdraw from a treaty.
How then does this apply to Article 50? My view that the principle enunciated in Article 68 of the VCLT applies to an Article 50 notification. The principle in Article 68 may be regarded as having customary status under international law. It is binding in EU law. As Tzanakopoulos points out, Article 68 was adopted without dissenting vote which, as the ICJ recognised in Namibia, is indicative of Article 68’s customary status. Perhaps even more relevant in the present context is the fact that the ILC recognises that a right to retract is implicit in the gap between the promulgation of the notice and its legal effect. In particular Special Rapporteur Warlock highlights that the Committee concluded that the considerations militating in favour of encouraging a revocation are so strong that the general rule should admit a general freedom to do so. This is essentially the same logic as Derrick Wyatt QC applied when considering the effect of Article 50 TEU above. My view is therefore that, absent explicit provision to the contrary, the right to revoke a notification of the intention to withdraw from a treaty has customary status in international law; such a right is implicit absent explicit provision to the contrary and the CJEU is bound to interpret the two year notification period specified in Article 50 as importing such a right.
Practicalities: Where next for Article 50?
As highlighted above, the practical implications of a right to revoke an Article 50 notification are significant. First and foremost the existence of such a right would significantly bolster the UK’s position in any potential future negotiations with the EU under that Article. The benefits of this should not be underestimated.
Beyond this significant practical advantage the right to withdraw a notification may also have domestic constitutional implications in the context of who has the power to issue a notice. In their letter to the Government Legal Department Bindmans argue that,
“It is not necessary conclusively to establish that Article 50 is irreversible to make good our argument that only Parliament may authorise the process to be commenced.”
My own view is that this is probably correct. I do not think that the argument that exercising the royal prerogative to make an Article 50 notification would offend the principle of legality and/or render the ECA 1972 and EU Act 2011 nugatory turn on the revocability of the notification. However it is not difficult to conceive an argument to the contrary. If a notification under Article 50 is not a ‘once-and-for-all’ action then the effect of a notification will not necessarily override the will of Parliament as expressed in statute. Rather, if a notification does not have binding effect, it might be said that the Prime Minister may exercise the royal prerogative to make a notification under Article 50 and then seek subsequent Parliamentary approval for that action. Parliament may then decide whether to repeal relevant legislation, or to revoke the notice. If the Prime Minister refused to do so the remedy would be mandamus.
Given that at least one claim for judicial review has already been made, the relevance of the effect of issuing an Article 50 notification is no longer academic. The Administrative Court may well form the view that an understanding of the effect of an Article 50 notification is necessary to enable it to give judgment in that case and exercise its discretion to refer the matter to the CJEU under Article 267 TFEU. If it does not the Court of Appeal or the Supreme Court may well do so.
There is plainly a considerable risk that the CJEU would not accept the interpretation of Article 50 proposed above. This would have very serious consequences for the UK and for this reason the Government may wish to avoid a reference. Similarly, the claimants might prefer that the meaning of Article 50 remains moot for the purposes of their claims for judicial review. However, in my view there would be a very real benefit in clarifying the effect of Article 50 at an early stage. As recent political events are showing, uncertainty is often as damaging as an unwelcome decision. Whether or not an Article 50 notification may be revoked is a question that will need to be answered sooner or later. For my part this is a case of the sooner the better.
Charles Streeten, Barrister, Francis Taylor Building
With thanks to Pavlos Eleftheriadis for his support and feedback.
(Suggested citation: C. Streeten, ‘Putting the Toothpaste Back in the Tube: Can an Article 50 Notification Be Revoked?’, U.K. Const. L. Blog (13th Jul 2016) (available at https://ukconstitutionallaw.org/))