Document Type

Article

Publication Title

Cardozo Law Review

Abstract

Support for Brexit as pursued by Prime Minister Theresa May is shaky and probably waning. An opinion poll conducted in August 2017 suggests that if another referendum on Brexit were to occur, the “Remain” side would win it comfortably. Moreover, as the government has pursued negotiations with Brussels on Brexit, its strategy has often been unclear and the “hard Brexit” approach of Britain—leaving without retaining access to the single market—has even less support than the general idea of Brexit and indeed is alarming to Britain’s business community. If these trends continue, and if a deal on Brexit that is acceptable to the majority of the public in the United Kingdom (U.K.) becomes ever more elusive, then the idea of simply reversing Brexit and stopping the process dead in its tracks will undoubtedly gain traction. But is such a reversal constitutionally and legally possible, taking into account both formal and informal norms of democracy? In this Essay I argue that the answer to that question is a resounding “yes”—both under the U.K. and the European Union (E.U.) legal and political orders. The Resolution of the European Parliament on Brexit Negotiations—voted in early April 2017—indicates that reversal of Brexit would occur, from the E.U. perspective, by the revocation of notice to leave under Article 50 of the E.U. treaty (Treaty of Lisbon). The European Parliament (E.P.) suggests that “revocation of notification needs to be subject to conditions set by all EU-27, so that it cannot be used as a procedural device or abused in an attempt to improve on the current terms of the United Kingdom’s membership.” Two separate points are at issue here. First, the E.P. affirms, in suggesting that the revocation of Article 50 needs to be subject to conditions, that the Treaty of Lisbon itself permits such revocation; this is clear from the language of Article 50 of the Treaty of Lisbon. Article 50 refers to notice of an “intention” to withdraw; an intention is far from an irreversible decision, simply in terms of the ordinary meaning of words. The second point is that the right of revocation cannot be entirely open-ended as it could then be used or abused in bad faith for strategic objectives; thus conditions are needed, to be decided by consensus of the other twenty-seven E.U. Member States. The resolution implies that, in the absence of such conditions decided by consensus (less the U.K.), the right to revoke notice under Article 50 would be unlimited.

First Page

1041

Volume

39

Publication Date

2018

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