Constitutional Law Group March 26, 2019 Europe, European Union, UK government

Philip Allott: Unexpected Denouement. The UK Remains in the EU by Mistake. The Brexit Saga Could Run and Run

The two-year time-limit in Article 50 of the Treaty on European Union has come and gone. It is now possible that no withdrawal agreement between the European Council and the UK will be concluded. This means that the UK would leave the EU in catastrophic circumstances on April 12. An interesting final irony would be that the UK would be leaving the EU on the basis of a legal howler.

The Wightman ruling of the European Court of Justice on 10 December 2018 recognised the unilateral right of the UK to revoke the notification of its intention to withdraw from the EU.

The reasoning of the Court was based on the idea that, although Article 50 does not create such a right explicitly, it must be inherent in the very nature of the notification of a mere intention to withdraw. Such an intention may change over the course of time, for example, in the light of the bitter experience of an attempt to give effect to the withdrawal in practice.

If no transitional agreement is concluded, the notification could certainly be revoked up and until 12 April. If, contrary to expectations, a transitional agreement, on present terms or newly negotiated terms, were concluded with the European Council, the logic of the Court’s ruling could mean that the notification of intention to withdraw could be revoked at any time until the UK withdrawal is fully and finally in effect, even during the implementation of the transitional agreement.

If the UK’s notification of its intention to withdraw from the EU is not revoked before 12 April or 22 May, a significant legal problem would arise.

The power to extend the period of negotiation under Article 50 is designed to switch off the two-year time-limit that would otherwise cause the automatic withdrawal of a member state. The agreement of 21 March between the Prime Minister and the European Council extended the period of negotiation and thereby prevented automatic withdrawal on 29 March. As a result of the agreement of 21 March, the two-year time-limit in Article 50 measured from March 2017 ceased to have legal significance.

But the agreement of 21 March does something else, beyond extending the period of negotiation and cancelling the 29 March deadline. It imposes time-limits triggering the automatic withdrawal of the UK on 12 April (without a transitional agreement) or 22 May (with a transitional agreement).

It is fairly obvious that those new time-limits are an abuse of the power contained in Article 50 to extend the period of negotiation. The amazingly short new time-limits clearly do not allow for a genuine further negotiation. They are a virtual amendment of the time-limit in Article 50, replacing 29 March with 12 April and 22 May.

What lawyers call the object and purpose of the power in Article 50 allowing an extension of the period of negotiation is to allow us to avoid the disaster of an automatic withdrawal, not to prevent further genuine negotiation. But that is precisely the effect of the new time-limits in the agreement of 21 March. They are liable to cause what the power in Article 50 is designed to avoid.

The use of the power in Article 50 to impose time-limits with this ulterior purpose cannot conceivably be lawful, even if it takes the form of an ad hoc agreement between the UK and the European Council.

Imposing time-limits that lead to automatic UK withdrawal without genuine further negotiation would require a formal amendment of Article 50. This can only be achieved by the amendment procedures contained in the Treaty on European Union and the Treaty on the Functioning of the European Union. Amending EU treaties can take many years to complete.

If the UK notification of its intention to withdraw from the EU is not revoked before 12 April or 22 May, it would be possible to conclude a new ad hoc agreement with the European Council creating the possibility of genuine further negotiation, with or without time-limits that are compatible with the object and purpose of Article 50.

It is difficult to say how or when a senior national court or the European Court of Justice could apply their forensic minds to this problem of the legality of the new time-limits. It might be after the illegitimate automatic withdrawal had occurred.

If the time-limits in the agreement of 21 March were held to be unlawful and invalid under EU law and UK law, the UK would then continue to be, or would retroactively become again, a member state of the EU.

Of course, the government of the UK, as an improbably surviving EU member state, could thereafter notify the European Council of a newly formed UK intention to withdraw. Article 50 would then be applicable again, with its two-year time-limit from the date of a new notification, together with the power to extend the period of negotiation. We could have any number of reprises of Brexit.

Philip Allott is Professor Emeritus of International Public Law at Cambridge University.

(Suggested citation: P. Allott, ‘Unexpected Denouement. The UK Remains in the EU by Mistake. The Brexit Saga Could Run and Run’, U.K. Const. L. Blog (26th Mar. 2019) (available at https://ukconstitutionallaw.org/))

12Comments

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1

Paul W on March 26, 2019 at 9:33 am
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“They [the new time limits] are a virtual amendment of the time-limit in Article 50, replacing 29 March with 12 April and 22 May.”

Isn’t that precisely how the extension is intended to work?

“The amazingly short new time-limits clearly do not allow for a genuine further negotiation.”
Why should they? The two year time period itself arguably didn’t allow that either. And the EU could reasonably argue that there is nothing left to negotiate on the withdrawal.

“It is fairly obvious that those new time-limits are an abuse of the power contained in Article 50 to extend the period of negotiation.”
“What lawyers call the object and purpose of the power in Article 50 allowing an extension of the period of negotiation is to allow us to avoid the disaster of an automatic withdrawal, not to prevent further genuine negotiation.”

Article 50 is silent on why the parties may agree an extension. It could be for any reason ranging from purely administrative mechanics or major renegotiation. There is no implied ‘object and purpose’. The negative avoidance of an automatic withdrawal is not in itself an object to which terms like ‘abuse of power’ can be attached.
2

Roger on March 26, 2019 at 10:11 am
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If the extension(s) were deemed invalid then the 29/3/19 withdrawal date would continue to apply. We would leave free of a restricting deal on 29/3/19.

Invalid extensions wouldn’t magically make the notice under Article 50 disappear.
3

Leonard Besselink on March 26, 2019 at 10:28 am
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It would seem to me that if the time limits agreed by the UK and the European Council to extend the operation of the EU Treaties to the UK are unlawful, because of an alleged “abuse” of the power to extend, the extension itself is unlawful and therefore the UK ceases to be a member of the EU on the 29/30 March 2019.
What is probably meant, however, is not an ‘abuse’ of the power (French: abus de pouvoir), but the use of the power to extend for a different purpose than it had been granted for (French: détournement de pouvoir) – which arguably would render only the agreed dates unlawful, but not the extension as such.
The problem with this argument is that there is no convincing reason for assuming that the power to extend under Article 50(3) TEU is merely given with a view to continuation of negotiations between the withdrawing member state and the EU, and that any extension must therefore exclusively serve the purpose of negotations between these parties on the terms of the withdrawal.
Even if this were the case – which it clearly is not – it may be argued that the position of the withdrawing state and the EU is one of legal subjects concluding a treaty obligations. The agreed obligation entailed in the agreement of 21 March between the UK and the European Council of which the European Council Conclusions are evidence, is a later agreement under international law setting aside the earlier obligation of Article 50(3) TEU, or is, alternatively, a specific treaty obligation that sets aside the more general obligation under Article 50(3) TEU. This new international engagement of 21 March is caused by the evident inability of the UK, for reasons of internal politics, to engage at all in substantive negotiations with the EU on terms of withdrawal.
Finally, this very same inability of the UK to negotiate on the terms of the withdrawal with the EU would – if such negotiation were the only possible rationale of an extension – prevent the occurrence of any extension. So that the UK will cease to be a member on 29/30 March.
Leonard Besselink
4

Paul W on March 26, 2019 at 11:00 am
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Professor Allott airs again the question of the right to withdraw an Article 50 notice. He says:

“although Article 50 does not create such a right [to revoke] explicitly, it must be inherent in the very nature of the notification of a mere intention to withdraw.”

It is water under the bridge now, following Wightman, but Article 50 as drafted does not carry the implication ascribed to it by Professor Allott. Indeed the ECJ, in finding the right to revoke, based their reasoning largely on higher purposive concepts of EU membership.

By analogy, if I intend to get married and notify the marquee company and the caterers and the honeymoon travel company of my intention, it is not ‘inherent in the very nature of the notification’ that I can freely change my mind and my booking. If I do, I will be up for the cancellation costs.

Notification is an event, not a state of mind. It is a bell that once rung cannot be unrung. Once the notification is given, the two year period runs automatically.

Article 50 is drafted like a termination right in a lease. No property lawyer would expect to be able to withdraw a lease termination notice unilaterally.
5

viabestbuys on March 26, 2019 at 12:53 pm
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I’m not sure that the UK needs to stay in the EU
6

Gen William Taggart on March 27, 2019 at 1:17 am
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There is another rather unusual point of law which I have been bringing to the fore, as you are aware one of the fundamental requirements of invocation of Article 50 of the Treaty of Lisbon is the support of the people.

I am not sure if it was intentional or a Genuine err in law, but it does not appear to make allowances for Member Countries like the UK who do not have a codified constitution and as consequence no legal weighting to referendums.

Is does technically mean that the E.U should not have actually accepted the Referendum result as legally presented support of the people. However recent events create yet another twist upon this.

The Petitions on the Government Website are legislated for, as in thresholds of response by Government and ultimately a hearing in Parliament. Be it the main Chambers or Westminster hall. Either way it does give such petitions a tiny weight in law.

Pile on the fact that the signature level on the Petition to Revoke Article 50 outstrips the all the Pro Brexit petitions combined.

Parliament and the E.U finds itself in a rather unusual position, as the support or in this case the non support of the people for the purposed of Article 50 must be judged upon that which has most legal weighting under the National law of the country trying to invoke it.

The Referendum has zero weighting, thus the E.U may be forced to void the earlier decision to endorse the Invocation of Article 50 as the legally recognised opinion (the petition) is not in support for Brexit.
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  Peter B on April 8, 2019 at 10:37 pm
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  Miller decided that, constitutionally, the Government required Parliament’s permission to notify an intention to withdraw. That was done, so the constitutional niceties have been fulfilled in accordance with the law as set down by the Supreme Court.
  
  The referendum is a bit of a red herring as it’s irrelevant to the constitutional aspect. Parliament could have chosen to ignore the result, whichever way that result had gone, and indeed could have chosen to permit Article 50 to be invoked without a referendum in the first place.
8

Tam on March 27, 2019 at 9:37 am
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“Of course, the government of the UK, as an improbably surviving EU member state, could thereafter notify the European Council of a newly formed UK intention to withdraw. Article 50 would then be applicable again, with its two-year time-limit from the date of a new notification, together with the power to extend the period of negotiation. We could have any number of reprises of Brexit.”

Very difficult to reconcile with the “unequivocal and unconditional” requirement in Wightman.
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  Richard Bird on March 27, 2019 at 6:19 pm
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  There is no bar to another revocation in the future. “Unequivocal and unconditional” applies to the decision made at the time. A revocation should be without any doubt as to its meaning (unequivocal) and without any conditions attached. That is all. I see no legal bar to a member state serving notice again, at some future time after a revocation. There is nothing in Article 50 TFEU, nor in the Wightman ruling, which removes this fundamental right. The only way this could be changed is in a treaty change.
10

Richard Lang: Consequences of the Extension Deal: A Reply to Professor Allott | UK Constitutional Law Association on March 29, 2019 at 9:00 am
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[…] would like to thank Professor Allott for his fascinating post, ‘Unexpected Denouement’. The UK Remains in the EU by Mistake. The Brexit Saga Could Run and Run’ from Tuesday. I just […]
11

After Defeat | Verfassungsblog on March 30, 2019 at 12:11 pm
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[…] PHILIP ALLOTT believes that the short-term extension of the Brexit deadline could be seen as incompatible with Art. 50 TEU, with the result that the UK would be a regular EU member again for the time being, and the two-year deadline could be set anew with a new Brexit declaration. RICHARD LANG, for one, is unconvinced. […]
12

Brexit Highlights 25 – 31 March 2019 | Middle Temple Library Blog on April 1, 2019 at 2:44 pm
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[…] – New articles were posted on the UK Constitutional Law Association blog – Alexandra Sinclair and Joe Tomlinson: Brexit, Primary Legislation, and Statutory Instruments: Everything in Its Right Place?; Richard Lang: Consequences of the Extension Deal: A Reply to Professor Allott; Philip Allott: Unexpected Denouement. The UK Remains in the EU by Mistake. The Brexit Saga Could Run… […]