Helen Mountfield QC writes: As the storm clouds gather over Brexit, the EU withdrawal bill has been delayed a second time while the government tries to persuade backbench Tories to revoke their support for amendments that would allow MPs to block a “no deal” Brexit. The ever-sane Conservative MPs Dominic Grieve and Anna Soubry have put their names to an amendment that would provide that any final deal must be approved by a separate act of parliament. This is more than parliament parking its constitutional tanks on the government’s lawn: it means that if, as seems increasingly likely, the only option on offer is a disastrous, no-deal Brexit, MPs can require the government to think again.
These amendments prompt the question: haven’t we already bound ourselves to leave the EU, by triggering article 50? The answer is no, probably not. No one has ever tested exactly what article 50 means before, because no one has ever used it, so anything that a lawyer says about its reversibility is informed speculation. But most EU lawyers think that having given notification of intention to withdraw from the EU under article 50 doesn’t actually bind us to doing it.
Article 50 is a provision for withdrawal from the EU, not expulsion from it. We are the petitioners here. If parliament decides that having thought it through, we would be mad to leave and wants to call it off, then there is a short window in which the court of justice of the EU would probably rule that we can. That is, we can decide to stay unilaterally, without asking the European council, or the commission, or the EU27, for permission.
The frequently used divorce metaphor is helpful here. All we have done is tell the EU we are unhappy and plan to go. Our relationship has not yet reached the point of no return. [Continue reading…]