The Myth of Retrospective Remaining

12th August 2019

Marriage à-la-mode: 6. The Lady’s Death, by William Hogarth

(Source: Wikipedia)

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There is a view gaining some traction among those who support the United Kingdom remaining in the European Union.

The view is that after 31 October 2019 it may be possible for the UK parliament to retrospectively annul the Article 50 notification so that the UK can be regarded as never having left.

This view is false.

To understand why the view is false, one first can go to Article 50 of the Treaty on European Union, which many will know provides for how a member state can unilaterally leave the EU.

The relevant part is in Article 50(3):

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

The significant phrase is at the beginning:

“The Treaties shall cease to apply to the State in question…”

This describes the position at international law.

The member state on departure shall cease to be party to the relevant treaties which govern EU membership.

The member state is out; a former member; a member no more.

The member state is then a “third country” as much as any other non-EU member.

This is the public international law equivalent of a decree absolute ending a marriage.

The marriage is over.

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But so used are UK pundits and politicians to the supposed omnipotence of the UK parliament, it is believed that somehow this departure can by legal magic be disregarded.  That the UK can, by some legal fiction, be deemed never to have left.

It will be too late.

The door has shut.

The cat, the horse and the genie are out of their respective containers.

No loud tearful banging or elaborate legalistic ruses can reverse the legal event of departure.

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Once a member state has left the EU then there is only one way back in – the perhaps soon-to-be-famous Article 49.

Article 50 itself, at (5) provides that Article 49 is the one means of return:

“If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

This process would likely be a slow process, and even if the UK were eventually successful, there would be considerable doubt whether the rebate and various opt-outs would resume.

Some would question whether the UK would meet the Copenhagen Criteria.

And, as with the Article 50 revocation notice, an Article 49 application can be unilaterally revoked by the state in question at any time.

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To place any reliance on the UK parliament retrospectively asserting it was an EU member after its departure under Article 50 is dangerous and delusional.

There can, of course still be an agreed extension of time, and the departure date can also be varied by agreement of the UK and EU27.

There can also be revocation of Article 50.

There are real options for UK politicians seeking to avoid a departure for the EU on 31 October 2019.

These options remain open, regardless of the breathless fanaticism of those in and close to the current government.

And these are the options that should be being taken seriously, rather than believing in a Remain breed of unicorn.

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26 thoughts on “The Myth of Retrospective Remaining”

  1. This is of course true. But the UK could align the UK arbitarily closely to the EU, even joining Schengen or pegging its currency to the Euro.

  2. Thank you for clarifying this David. Surely our parliamentarians must know this and if they don’t why don’t they?

  3. Oh, I’ve not heard that one?

    You’d have thought it was bleedin’ obvious, would you not?

    Still, worth confirming, to erase any doubt.

  4. The following comes to mind from Monty Python Dead Parrot sketch.

    ‘E’s not pinin’! ‘E’s passed on! This parrot is no more! He has ceased to be! ‘E’s expired and gone to meet ‘is maker! ‘E’s a stiff! Bereft of life, ‘e rests in peace! If you hadn’t nailed ‘im to the perch ‘e’d be pushing up the daisies! ‘Is metabolic processes are now ‘istory! ‘E’s off the twig! ‘E’s kicked the bucket, ‘e’s shuffled off ‘is mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-PARROT!!

  5. I reckon Johnson and co know this (Rees Mogg does) but are seeking to make political gain by blaming the EU et al. “How clever am I,” says Johnson “to thwart the EU” or “Look what the EU’s done now”.

  6. “This view is false.”

    Indeed. What is going on?
    Is Mr Bogdanor so used to the famous “flexibility’ of the UK Constitution that he thinks other parts of The World are equally wack?

    1. Most of us finally gave up reading Mr Bogdanor when he wrote an article which contained a hopelessly mangled misunderstanding of the Condorcet paradox, incorrectly suggesting that a “two-stage referendum … would avoid the paradox.” It wouldn’t and couldn’t (otherwise the paradox would not exist). It’s a pretty fundamental error for somebody in his business.

      https://www.theguardian.com/commentisfree/2018/jul/23/brexit-broke-parliament-people-fix-election-dilemma

  7. I agree that the UK cannot rejoin if nothing is done before 31st October, but the EU institutions might be able to take unilateral action before that date to extend UK membership from its perspective (perhaps until a new Government is formed following a General Election).

    Article 50 (1) of the Lisbon Treaty states: Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

    It is unclear whether the “in accordance with its own constitutional requirements” applies to “withdraw” or “decide”. If the former, then the EU might not want to impose withdrawal on 31st October if there was a legal challenge before the courts as to the constitutional validity of withdrawing without a deal, or a General Election in progress on that date .

    Article 50 (3) is silent on what happens at the end of an extension:
    3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

    For the first extension to happen, it requires the agreement of the country seeking to withdraw and the other 27 MS, but this is not stated for any subsequent extension. It would therefore not be inconsistent with this provision for the EU to suspend the implementation of the withdrawal for a short period beyond 31st October, to allow time for the legal judgement or an election to take place and for a new Government to be formed. As the Treaty is silent on this, such a course of action may not require the agreement of the UK Government.

    1. I think that “in accordance with its own constitutional requirements” is mere window dressing. If it had any real force, wouldn’t the EU27 have cancelled or suspended the A50 process, once the police started investigating the possibility of criminality in the conduct of the referendum campaign?

      (by the way, does anyone know where that investigation is now?)

      1. No, because it is up to the country concerned to decide upon its own constitutional requirements (with some limitations which don’t affect this issue), so it would be unduly presumptuous of the EU27 to act without some indication from the UK courts.

        We have, however, with the ‘Miller’ case been treated to the international spectacle of an executive which demonstrably was ignorant of its county’s own constitutional requirements (or else was prepared to lie by feigning ignorance all the way to the Supreme Court in the vain hope of evading them). *That* was quite something!

        As to what this extended debacle has revealed about the fitness for purpose or otherwise of our electoral laws and authorities … “far too little, far too late” would be an unduly generous assessment.

  8. “The moving finger writes, and having writ, moves on.
    Nor all thy piety nor wit can lure it back to cancel half a line
    Nor all thy tears wash out a word of it.”
    Omar Khayyam

  9. I am not sure I agree.

    Article 50 begins with this:
    1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

    After a writ of election has been dropped, the the government must serve only as a caretaker. That is to day, the government has been defeated on a vote of confidence and after two weeks the House has not expressed confidence in a government, the the house is dissolved .
    The caretaker status is sometimes called purdah status.

    The House has voted against crashing out of the EU.

    The crashing out on October 31 is new policy and hence not valid.

    Under the part of Article 50 I quoted above, the withdrawal from the EU has not been in accordance with the constitutional requirements of the UK.

    It seems to me that means that the UK has not left the EU.

    A Canadian example in which a major policy change did occur during purdah highlights why crashing out on October 31st is invalid.

    In December 1979, the Joe Clark government’s budget was defeated in the House of Commons. Subsequently the writ was dropped for an election in March.

    As we all know now, the Canadian Embassy in Teheran was home to US citizens who had escaped from the Embassy where hostages were being held.

    The son of former Trudeau cabinet minister Gérard Pelletier was a journalist who informed the government privately that the word of the ‘house guests’ was known to others in the media.

    The government broke off diplomatic relations with Iran enabling the Americans and the Canadians to leave the country (just in time).

    The opposition was informed. A pro forma statement objecting to a policy change under the purdah rules was made by Ed Broadbent leader of the NDP.

    We know the rest.

    So we may that purdah rules allow for a policy change in an emergency with the knowledge and agreement of the opposition. It may be done in secret.

    But that just won’t be the case on October 31.

    Once the House is dissolved, no policy change can occur. To -paraphrase Ethel Merman “Call me Miss. Birdseye, this policy is frozen.”

  10. Thank you for this article David. I hope the unicorn retainers take note of it. I hadn’t heard of the ‘Copenhagen criteria’ before, so thanks for that in particular. I think it probably explains why the Corbyn gang are so pro- Brexit. Their desire for a planned economy would break the market economy criterion

  11. Parliament can vote a LAW to Revoke Article 50 before the deadline 31 Oct 2019. INB4 some people saying there is no time for that – well MPs can enact emergency Act of Parliament to revoke A50. Yvette Cooper got her act in law in 3 days. It is possible. The bad news:
    EU will not give any new extension after 31 Oct without UK changing its red lines.
    There are 2 options left for the UK now:

    No Deal.
    UK Parliament to revoke Article 59.

    The really bad news is honestly nobody wants you in EU anymore.
    I am sad to say that as been anglophile all my life. People in EU used to look up to British way of doing things. Now no one wants you in EU. Literally no-one. Even Le Pen and Orban. German magazine Stern cover last week (with picture of Johnson in suit standing like a prick and looking literally deranged): What is wrong with you Britain? Macron do warned the others NOT to give 6 months extension to the UK, just few weeks until end of April 2019. Moderate Merkel and Tusk have won last time. We all see now Macron was right. No more favors. 31 Oct and you’re kicked out of the EU. Barnier is polite and wants a deal because this is literally his job. But EU voters don’t want the UK. No offence, but No Deal will cost the EU 0.25% of our GDP. Meh… I would personally give 10% of my pay to see the back of Johnson his racists mates Farage, Trump and the UK. If UK wants to be in the EU again it will take many years and a lot of humble pie eating to let you in again.

    Good luck.

    1. This comment explains why I’d now like to leave the EU as soon as possible. The lid has been lifted. You don’t see us as equals, just people to take instruction or face retribution.

      Boris Johnson is my Prime Minister. When you insult him you insult me and my country. And for the record his cabinet is a truly diverse cabinet of men and women from many races. He has recently produced a video for Eid celebrating the contributions of muslims to the UK. When I look at your governments ministers, it is just a wall of white, so think twice before you start complaining about racists.

      Keep this up and it won’t be just about trade. Why would I share security commitments with a nation that disparages me like this? Bring the fighters back from Estonia. Russia, take what you want.

      1. It’s funny when someone who has no qualms with pure defamation campaigns against other EU members gets exasperated when someone else slams his Prime Minister.

        You complain that you’d not be treated as equals, but the truth is that that’s projection on your part – for you, the EU are suitable scapegoats whose sole purpose is to project blame on them, make them responsible for all the evils in the world, especially those caused domestically, vilify them and their policies, but at the same time expect that you don’t need to share in their duties while enjoying all rights.

        Stating “Keep this up and it won’t be just about trade” only underscores that for you, it’s only about profiteering off other people and you don’t actually share the values of the EU. Trade was always and explicitly – contrary to the lies propagated by the Leave campaign – a means, and not the purpose of the EU.

        With that attitude, don’t let the door hit you on the way out. We are not your doormats, nor your livestock. The gall to complain that others wouldn’t treat you as equals while you treat them like cattle speaks volumes.

      2. Boris Johnson is not my Prime Minister.

        I played no part in his election.

        I don’t support his party.

        I don’t share his mightily suspect values

        I don’t share his vision of an Empire consisting of the Isle of Wight.

        I believe he and his cardboard cut-out Cabinet, pose a greater threat to the principle of the UK’s Parliamentary sovereignty, than the EU allegedly ever did.

  12. This is all true. Another way to reach the same conclusion is to follow the hypothetical a bit further. We imagine that yes, the commission and EU27 and UK leaders all concur that a retrospective revocation is a fine idea, so they make a decision that Brexit never happened and we shall never speak of this again. Very shortly after this there will be a case before the CJEU complaining that this was entirely unlawful and that the treaties don’t allow it. They would surely win. If there was an attempt at a retrospective revocation it would be unpicked by the courts.

    People need to look elsewhere for salvation, or buckle up for the ride.

  13. I recognise there’s been a lot of mistaken commentary about this in London but still one could reasonable ask what specific EU law provision precludes the EU treaties being reapplied, e.g. after a short period of chaos, say 3 months, by political agreement of the European Council at 28 (i.e. UK included). Article 50 itself does not preclude this. The Wightman judgement e.g. showed how there can be other hidden escape routes, the principle being that what is not preclude can be accepted. In my own experience, in many or perhaps even most EU negotiations law and politics often represent two sides of the same coin.

  14. If the writ has been dropped, then there is no parliament to revoke Brexit on the 31st October. A massive change in policy occurs. This is certainly not what is supposed to happen during an election campaign (i.e purdah). How does this not conflict with the constitutional requirements of the UK?

    1. The change in policy would have been agreed on long before, however, with the filing of article 50. So no conflict is given. That a significant change would occur was clear the moment article 50 was filed, as was the fact that it could be a “no deal” scenario.

  15. Speaking as a Brexiteer… this is legally speaking in terms of Public International Law *in theory* quite perfectly possible if the EU could somehow suddenly agree to this and sign and ratify a supplementary protocol treaty (effectively) amending the TEU, and also manage to for this purpose bully ALL the (other) EU member states (and also Switzerland, Turkey and the member states of EFTA which are in the EEA) to agree to sign, ratify (and enact if necessary) and implement the same, with no reservations or concessions allowed… I just politically or realistically don’t see this as even remotely possible, however.

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