Can Brexit Be Stopped?

It is a complicated legal question with uncertainty abound

The Brexit negotiations are proving tough. As they continue to do so, the prospect of a ‘no deal’ situation seems increasingly likely. Although some view such a scenario as a disaster for Britain, this may not necessarily be the case. The World Trade Organisation option, whilst not ideal, may not be totally detrimental for the UK either, as I have argued in a previous article.

But for those who are more pessimistic about Brexit, a ‘no deal’ scenario seems the worst possible outcome. In light of such pessimism, Keir Starmer, Labour’s Shadow Brexit Secretary, has said that his party would oppose a “simply not viable” no-deal exit if it were ever put before the House of Commons. In addition, on the Andrew Marr Show, Shadow Chancellor John McDonnell revealed that Labour were in talks with Conservative MPs to invoke a ‘parliamentary veto’ in order to prevent the UK leaving the EU without a deal.

Such a hard stance is more of a political stunt than a manoeuvre of any substance. The question of whether Brexit can actually be stopped is a legal question as much as anything else and there is no straightforward answer.

To begin with, whilst it is possible for Parliament to reject a ‘no deal’ exit, Article 50 of the Lisbon Treaty states that once the notification for withdrawal is given, the UK will cease to be a member after two years. This will happen regardless of whether or not there is a deal on the UK’s future relationship with the EU. Thus, deal or no deal, the UK will cease to be a member of the EU in March 2019.

Of course, it is possible for Parliament to alter any deal put forward by the Conservatives, but it is unlikely that this would have any automatic effect on the actual Brexit process. Article 50 cannot be revoked unilaterally; reversing Brexit cannot be done by the UK alone. It would need the approval of the EU as this is a matter of European law as much as it is British law. Indeed, the European Parliament itself has said that a revocation of Article 50 would need “to be subject to conditions set by all EU 27 so they cannot be used a procedural device or abused in an attempt to improve the actual terms of the UK’s membership.”

The issue here is that, even if Parliament wanted to revoke Article 50, there is no guarantee that the EU would agree to it. It is possible that the EU would reject the reversal of Brexit so as to not give the impression to other rather sceptical members — such as Poland or Hungary — that they could use the empty threat of leaving as a bargaining chip on issues like migration.

Ultimately, it is hard to argue that the UK has more sovereign power than the EU when it comes to revoking Article 50. But such arguments have been made. Solicitors from Bindmans LLP, a law firm, have put forward their view (dubbed the ‘Three Knights Opinion’) which argues that Article 50 could, in fact, be revoked unilaterally. They cite two reasons for this. The first is that it would be “inconsistent with the fundamental principles and aims of the European Union for [the UK] to be expelled against its will.” Since the UK is still currently a member, and thus its citizens and EU nationals are still entitled to fundamental EU rights, to reject their reconsideration would conflict with those very rights.

Secondly, they say that Parliament needs to not only initiate the negotiation process for withdrawal, but also to vote on the eventual terms. If at the end of the negotiations it rejects such terms, then the effects of Article 50 cannot take place.

The first point does have some merit. Such an issue would indeed have to be assessed by the EU as to whether a rejection would, in fact, contravene the fundamental principles of the Union. The second point, however, is contestable. In the Miller case, it was said that the need for legislation following the triggering of Article 50 was a practical requirement, not a legal one. The Withdrawal Bill is aimed at securing an orderly transition once EU law ceases to apply, thereby avoiding legal chaos and uncertainty after Brexit. But the Supreme Court did not view the Withdrawal Bill as a constitutional requirement. So even if it were rejected, Brexit could still continue.

Whilst there may not be a great deal of certainty regarding whether or not Brexit can actually be stopped, one would have to question whether that case would actually be desirable. Is there really an appetite amongst people in the UK to stop Article 50 in its tracks? Even now as the prospect of a no deal situation becomes increasingly likely, it would seem a controversial move by any party. The referendum last year has been widely cited as the mandate to leave the EU. What mandate is there not to leave? Surely this question needs to be answered first before its potential consequences can be brought to the fore.

This article originally appeared on BackbenchUK