19 April 2017

Of course you can still turn back! On the revocability of the Article 50 notification and post-truth politics

The British Prime Minister Theresa May has announced yesterday the intention to call a ‘snap’ general election to be held on the 8th of June 2017. The announcement has caught everyone, and I really mean everyone, off-guard. Not only because it represents a radical U-turn from the PM’s own professed stance since taking up the post eight months ago. There was also absolutely no whiff over the Easter weekend – to the point that even Conservative MPs have manifested their surprise upon the announcement. Analyses are pouring in as I write and so far two major ‘camps’ are emerging: one that highlights the smart political move by Theresa May, who is now set to cash in from the surge over Labour in polls of the last two months, and one that instead laments the ‘cynical’ move by yet another Conservative PM, who puts the interest of the party – and her own – before that of the country. This general election will be in fact likely one of the most polarised ever, with strong centrifugal forces pushing in Scotland and Northern Ireland, and at the centre of it there will be Brexit and the impending negotiations. This is crystal-clear from the PM’s statement and all the major political party leaders, with the resounding exception of Jeremy Corbyn, have immediately followed suit in couching the upcoming vote in Brexit terms.

Be that as it may (no pun intended), this short comment seeks to highlight one unacceptable contention by the Prime Minister in announcing the forthcoming general election:

We have also delivered on the mandate that we were handed by the referendum result. Britain is leaving the European Union and there can be no turning back. (emphasis added)

Later on, she stressed the same point in an interview with ITV:

Well I think if people look at what I’ve done and what we’ve done in government since the referendum vote, since I took over as prime minister, we have provided stability and crucially we have rolled our sleeves up, we have got on with the job, we’ve said we are going to deliver on Brexit. We have taken that absolutely crucial first step, which is triggering article 50. There is no turning back now. The UK will be leaving the EU. (emphasis added)

To put it shortly, the PM is lying. For it is not true – ‘post-true’? – that ‘there is no turning back now’, both from the legal and political point of view. Legally speaking, the notification to trigger article 50 TFEU can be unilaterally withdrawn: besides international law experts, Donald Tusk himself, once pressed on the point, has stated unequivocally that the UK government could withdraw its notification to leave the Union at any point before the end of the two-year period. And even if you are among those who believe that no unilateral withdrawal is possible there is no doubt that, as a matter of ‘multilateral politics’, the UK and the EU-27 could reach an agreement to that end at any time during the negotiations. There is also no obstacle, in this respect, from the UK domestic constitutional arrangements.

Now, I am not suggesting in any way that this is what should happen. This is of course a purely political decision that the next British government will legitimately consider or not, in light of the results of the forthcoming elections. What I do think though is that the PM’s contention that ‘there is no turning back’ can or should be dismissed as mere ‘political talk’. It is no ‘white lie’ either. It is instead a precise rhetorical device which, if accepted surreptitiously, dramatically constrains the options available to British voters in the elections. For if the argument is accepted that there is no turning back from Brexit, then the PM’s request to the country to unify behind the government’s plans for a ‘hard Brexit’ – putting an end to the opposition by other parties in the Commons and by ‘unelected members’ of the House of Lords – does strategically make sense. Either that or, as the PM said, ‘[d]ivision in Westminster will risk our ability to make a success of Brexit and it will cause damaging uncertainty and instability to the country’. Here her reasoning is indeed valid: from the negotiation’s success point of view, a disunited domestic front weakens considerably the government’s bargaining position vis-à-vis the EU-27. And as we cannot go back to the notification of withdrawal, it is in the national interest – and thus in the voters’ too – to strengthen behind the government to allow it to deliver ‘the best possible deal’, rather than having to fall back on the dreadful ‘no deal’ scenario. But again, this argument, which is the only public argument with which the PM has justified her astonishing U-turn on holding early elections before 2020, is based on a clearly false premise: that the Brexit process is now irreversible.

Is this yet another example of the ‘post-truth’ age of politics we are currently living in?

By affirming that there is no turning back from Brexit (whilst knowing very well that there is), the PM is actually trying to make it the case: she is performatively using her normative authority to transform a (legitimate) political stance – that there should not be turning back from Brexit now – into an empirical fact – that there is no turning back. She is not just saying something, she is doing something. And when this is done against a factual truth – that the UK government can legitimately halt the Brexit process at any point in time before the article 50 deadline, it constitutes an unacceptable operation in a democratic system. Such an operation obliterates the very idea of ‘truthfulness’ and seems to hinge on cognitive biases that sometimes even lead to reinforcing misperceptions in spite of fact-checking (‘backfire effect’). And when it is conducted from a position of authority such as that of Prime Minister, one can only wonder the impact it will have in shaping the public narrative of the upcoming election.1)Anecdotal evidence seems already to confirm this, as I had several conversations with Remain voters who readily accept that ‘there is no turning back from Brexit now’.

In other words, when political ‘expediency’ uncritically supersedes historical and scientific truths or factual accuracy, and no one over mainstream media seems to even blink an eye about it, any constitutional democracy is in real peril. The ‘epistemic circumstances’ of democracy cannot be easily discounted without relinquishing the idea that the outcome of the democratic process will be ‘the best possible’. It (most likely) won’t. We have been witnessing this in a number of occasions over the last couple of years. And such a worry becomes even more pressing in the context of a democratic system where strong formal constitutional limits are missing.2)That is, in a constitutional system like the British where practices crystallise in constitutional conventions as non-formal sources of the constitution, the behaviour of political actors should be scrutinised to even a greater extent than in other systems. The Brexit referendum should be a prime example of this phenomenon: when one of the official campaigns is allowed to put forward blatantly misleading statements about Turkey’s accession to the EU, or about the UK’s contribution to the EU budget that could be redirected into the NHS – where, in one word, voters are utterly mislead and this is not somehow officially sanctioned – the democratic legitimacy of the outcome can be reasonably questioned.3)It is important to note that the Report on the lessons learned from the EU Referendum, just published by the Public Administration and Constitutional Affairs Committee, criticise also the Civil Service for making some ‘partisan’ claims as part of their public information campaign leading to the vote (at 156).

This is possibly the biggest challenge for political theorists and philosophers nowadays: how to defend democratic processes in light of the utter disregard by many actors for the very epistemic circumstances – scientific method, historical accuracy, deductive and inductive logic, and so forth – that constitute them. On the ground, all those interested in defending democracy and its values should refuse to countenance the transformation of blatant lies into accepted public narratives that can shape the outcome of the elections. Let’s begin with the idea that British voters cannot ‘turn back’ from Brexit. For a start, anyone with legal expertise – students, professors, lawyers, journalists, and every knowledgeable people – should explain to his or her friends, relatives, and colleagues why this is not the case. Set the record straight, and from there discuss what the best option for the UK might be. I would argue there is a civic duty to do so.

References

References
1 Anecdotal evidence seems already to confirm this, as I had several conversations with Remain voters who readily accept that ‘there is no turning back from Brexit now’.
2 That is, in a constitutional system like the British where practices crystallise in constitutional conventions as non-formal sources of the constitution, the behaviour of political actors should be scrutinised to even a greater extent than in other systems.
3 It is important to note that the Report on the lessons learned from the EU Referendum, just published by the Public Administration and Constitutional Affairs Committee, criticise also the Civil Service for making some ‘partisan’ claims as part of their public information campaign leading to the vote (at 156).

SUGGESTED CITATION  Sandro, Paolo: Of course you can still turn back! On the revocability of the Article 50 notification and post-truth politics, VerfBlog, 2017/4/19, https://verfassungsblog.de/of-course-you-can-still-turn-back-on-the-revocability-of-the-article-50-notification-and-post-truth-politics/, DOI: 10.17176/20170419-190822.

18 Comments

  1. Uk citizen Mi 19 Apr 2017 at 19:55 - Reply

    The article is complete bollocks. There is no process in the Treaty on European Union on relocating an Article 59 notification. During the campaign it was clearly expressed by both sides that there was no,possibility of revoking Article 50. The Uk government legal advice to the Supreme Court in the Miller case was that Article 50 was not revocable and the Supreme Courts decision was expressely based on it not being revokable once issued. The author here is merely expressing his hope that this is not the case.

  2. Paolo Sandro Mi 19 Apr 2017 at 20:07 - Reply

    Precisely my point, dear anonymous Uk citizen. The narrative that has been created is that the notification of art 50 cannot be withdrawn, which as a matter of law is not true (here for more info, just one of many https://verfassungsblog.de/is-article-50-reversible-on-politics-beyond-legal-doctrine/). Hence that narrative is wrong, and the PM is now trying to reinforce it to preclude to British voters some of their options in the forthcoming elections. I should also correct you on one point: the Supreme Court’s decision was expressly based on the fact that the parties in the proceedings agree that notification is not revokable – not that this is the case. And that part of the decision has been, in fact, criticised.

  3. Bernd Lauert Mi 19 Apr 2017 at 20:31 - Reply

    So far there are varying legal opinions whether the notification can be withdrawn or not (eg. „no“ according to the UK Supreme Court in the Miller case, „yes“ according to the „Three Knights“ opinion). Until there is an ECJ ruling, those opinions will continue to be just this: opinions. Weird how you completely disregard one of them and present the other as a fact.

    As to the „misinformation“: Both camps made exaggerated and misleading statements. Most statements made by the Brexit camp were misinterpreted by the Remain camp though.

    The best thing about Brexit is the unmasking of all enemies of democracy.
    „The ‘epistemic circumstances’ of democracy cannot be easily discounted without relinquishing the idea that the outcome of the democratic process will be ‘the best possible’. It (most likely) won’t.“

    That’s rich…

  4. Uk citizen Do 20 Apr 2017 at 09:34 - Reply

    As well as being legal bollocks, this article is politically naive. There is absolutely no prospect of any UK government (even if Labour were elected) withdrawing the Article 50 notification. The author may live in the UK but is completely clueless as to British public opinion and the relationship between public and parliamentary opinion in the Uk.

    What you have here is the wishful thinking of a citizen of nowhere whose rambling thoughts have no connection to reality.

  5. Leser Do 20 Apr 2017 at 10:48 - Reply

    @ UK citizen
    The author didn’t say it would or should happen, but it was legally possible for it to happen.

    It’s like this statement:

    „Donald Trump is allowed to admit being a complete baffoon and resign from office.“

    It neither says that Trump is a baffoon, that he will resign or that he should resign. It just states a legal possibility.

    One may argue the relevance of that possibility. But that’s a matter of opinion.

    @ Paolo Sandro
    I agree with your article in principle. However, one must ask, I think, if a politician’s statement of „is, must, can“ is to be understood as a statement of fact or of opinion.

    Example:

    „We must attack Russia now or never.“

    The term „must“ may be understood to be a statement about a legal obligation. But it isn’t.

    Similarly, if I were the lawyer of Ms. May defending here before an imaginary court for lieing politicians, I’d argue that she meant that as a statement of what should (not) be done instead of what could be done.

    But still, it is of course correct to counter such as broad statement and correct the somewhat imprecise statement from a legal standpoint. Personally, wouldn’t accuse her of lying, though. If that was a lie, than pretty much every politician would be a liar. Come to think of it – I happen to agree with your statement in the end.

  6. Paolo Sandro Do 20 Apr 2017 at 12:53 - Reply

    @Bernd Lauert:
    Hi Bernd, thanks for your comment. The ‚variety of opinions‘ you refer to is as to whether the UK can unilaterally withdraw its notification (and the vast majority of opinions says that it is, see the post on this blog I’ve quoted above) – be that as it may, no one, and I mean really no one, questions that the brexit process can be stopped by an agreement between the UK and the EU-27. So it is a fact that the Brexit process is not irreversible. As to the rest of your comment, when you write that ‚Most statements made by the Brexit camp were misinterpreted by the Remain camp though.‘, I’m afraid that I’m at loss for words.

    @Leser:
    thanks for your comment. You make a reasonable point regarding whether or not the PM should be accusing of lying – I’ve pondered myself about it before coming to the conclusion she is. My reasons:
    -the language in which she has couched the point – and the fact that she reinforces the point, in the ITV interview, by saying that ‚Britain will leave the EU‘ (not ’should‘, but ‚will‘).
    – the reference to the triggering of art 50 as ‚absolutely crucial step‘, as if that step cannot be taken back. I read that statement also in light of the Government’s submission in the Miller case – that art 50 notification is not revokable.
    – the pragmatic effects of her utterance (which are sought, of course).

    I would say that this case is very different from your (sound) example. I hope this clarifies.

  7. Leser Do 20 Apr 2017 at 13:48 - Reply

    I see your point. A clarification on what she means by that would have been advisable; she probably created a false impression about the legal situation in many – sadly, not every TV watcher has legal counsel next to the couch.

  8. Paolo Sandro Do 20 Apr 2017 at 13:51 - Reply

    @Leser unfortunately fewer and fewer journalists do their job properly, which would be to ask questions exactly like the one you mention, and not just pre-arranged questions…

  9. Leser Do 20 Apr 2017 at 16:00 - Reply

    So true.

    There’s been a viral video a while back in which a TV reporter interviews a young guy about Edward Snowden assuming that he’s somebody else. The guy’s answers are all as if she had asked about Edward Scissorhands. She doesn’t even seem to notice that something is off (or that the guy is offly young for whom she assumes him to be).

    That was, in my view, a good example of how journalism often works today.

    One has to wonder if the guys and gals in front of the camera are just actors who play journalists from a script, or if they actually understand the questions and possibly the answers.

    TV and the cult of beauty are, in my view, part of the problem. The appearance of journalists on TV is suspiciously above-average. Hard to believe that it’s possible to hire smart people who don’t give a s… about being popular exclusivley from a crowd of likeable, pretty people.

    Politicians have learned to answer in nebulous clouds of words or completely deflect the question („Thanks for the question, that is a very important topic, and part of a bigger problem. We, as a party, are in my view the only party with a plausible concept to work on that issue. While the members of the other party only talk, talk, talk, we act. It is the strong leadership within our party that allows us to act more decisive, more effective and more cost-efficient than any of our competitors, who will only create even more of budget deficit without doing much for the actual men and women in our country – for real people. And that’s why Chartage needs to be destroyed.“).

    But reporters in general apparently haven’t learned to deal with that properly: Do not let the interviewee dictate the topic. Do not allow them to flee into the abtract. Ask the hard, direct questions. And if they don’t answer, criticize that and ask again. And again. If they don’t answer, point that out to the viewers/readers/listeners. And if they don’t want to come in for a tough interview, don’t give them screen time and point that out to the audience („We asked Mr. … for an interview, but he declined. Well-informed circles point on us exposing his lies about … last week as the reason. Make from that what you want.“).

  10. Jeff Lewis Do 20 Apr 2017 at 21:19 - Reply

    It’s rather telling that „Uk citizen“ demonstrates EXACTLY the problem the author is trying to illustrate.

    In the matter of Article 50, the UK Supreme Court has literally no say. They cannot rule if revocation is possible. At best, they can rule if the UK government has a legal ability to act to revoke it. There’s no obvious reason why UK constitutional law would prevent that.

    More to the point though, the UKSC did NOT in fact say Article 50 was irrevocable. What they said was that they were going to proceed as if it wasn’t. They did this for a very important reason: the worst outcomes within the context of the court case were if Article 50 was irrevocable (either by law or by intent), so it was easier to focus on that one situation.

    Even if it were possible to revoke A50, the fact that the government may choose not to (and indeed, seems determined to prevent it), then it’s best assume the worst.

    Outside the UK government legal representative, who, as I already note, have no legal influence on the Lisbon Treaty which is ‚owned‘ and regulated by the EU, not the UK, the consensus is absolute: A50 is absolutely revocable – either unilaterally, or by permission of the remaining 27 members.

    Ironically, just today, the EUParl President Antonio Tajani made a definitive public statement reaffirming this.

    Technically, even AFTER the two year period is up and the UK has left, it can apply to rejoin at any time. So even *leaving* isn’t irrevocable.

    May’s continuing use of rhetoric claiming as fact that there’s no way to revoke A50 is duplicitous and wildly anti-democratic. What she means, of course, is that SHE will not revoke it. But phrasing in the way she has makes it sound like the game is over when it is anything but.

    And as we see with ‚UK Citizen‘, people will believe it. This manipulation of the public is fundamentally immoral and devisive.

  11. Paolo Sandro Fr 21 Apr 2017 at 01:36 - Reply

    @Jeff Lewis:

    thanks for your comment Jeff, much appreciated. P

  12. Uk citizen So 23 Apr 2017 at 01:07 - Reply

    Jeff Lewis. The UK Supreme Court Sid the following:

    169. In the light of these decided cases, and others to the same effect, the Miller claimants argue that giving notification under article 50(2) will alter domestic law and destroy statutory rights. That is because it will result in the EU treaties ceasing to apply to the UK, in accordance with article 50(3), from the date of the entry into force of the withdrawal agreement or, failing that, from the expiry of a period of two years after notification, or any longer period which may be agreed with the European Council. Since the EU treaties have been given effect in domestic law by the 1972 Act, so as to create rights enforceable before our national courts, it would offend against the principle established in the Case of Proclamations, and explained more recently in the Tin Council case, for that alteration in domestic law to be effected under the prerogative. This argument assumes that, once notification is given under article 50(2), the process of withdrawal from the EU cannot be stopped. It is common ground in all the cases before the court that it should proceed on that assumption. In any event, even if the process might be stopped, it is common ground that Ministers’ power to give notice under article 50(2) has to be tested on the basis that it may not be stopped. In those circumstances, that is the basis on which this court is proceeding.

    In other words the entire case of Miller was based on the assumption that Article 50 was irrevocable.

    Of course there are numerous EU politicians now desiring that the UK stays in the EU, who wish (like the author of this article) that Article 50 is revocable. Only the ECJ can interpret EU law and it is going to rule on the revocability of Article 50 because the Uk government is not going to try to revoke its notification.

    What we have here is is simple politics from Remoaners. Before the referendum they were keen to say A50 was not revokable because it supported their ‚leap in the dark‘ argument for not Levaing. As soon as they lost they begin to fervently wish A50 is revokable. But the bottom line is that there is negligible probability of the UK government wanting to revoke the A50 notification in next two years.

    As for rejoing the EU, of course that is theoretically possible. The Lisbon Treaty includes provisions for that (unlike revocation of Article 50 for which it has no provisions). However given the nastiness of the EU27 since June 23 I believe Brussels has poisoned it reputation in the UK. It is very clear that any campaign to rejoin the EU will be as dead as, for example, the campaign to join the €. Once the predictions of doom fail to come true the losing campaign loses all credibility and can never recover in the future. So please get used to the idea that the Uk is leaving the European Union and will never ever be back. Please abandon your wishful thinking and live in the real world

  13. Leser Mo 24 Apr 2017 at 09:37 - Reply

    Sorry to say that, but your whole point is based on a misunderstanding.

    „In other words the entire case of Miller was based on the assumption that Article 50 was irrevocable.“

    The import word is „assumtion“.

    That’s a legal thing: You assume the worst, most extreme case and judge that. If that worst case is legally okay, everything less catastrophic is legal, too. „A maiore ad minus“, if you want to google it.

    That does NOT say that the worst case actually happened.

    Example:

    A says that B hit him with a baseball bat. B claims a.) that there was no baseball involved and b.) that he acted in self-defense.

    A court may now try to find out if a baseball bat was present at the scene. It may question witnesses, ask a medical professional to assess the injuries, ask around if B owns a baseball bat and so on.

    Now imagine that they confirm that – and later rule that the act was in self-defense. It is now of no consequence if the bat was used or not, and all the work done on confirming that was in vain.

    So, a smart (i. e. lazy) judge will jump to the second question and ask if the attack was justified even IF there was a baseball bat involved. Only if it makes a difference if a bat was used or not, will that question be followed up upon.

    And that’s what the UK court did here: They assumed the worst case, i. e. irrevocability. The question was never answered, though – just as in the aforementioned example, nobody ever found out if there was a baseball bat.

  14. Uk citizen Mo 24 Apr 2017 at 20:28 - Reply

    Lesser: I am agreeing that only the ECJ can decide definitively if Article 50 is revocable. The opinion of the author of this article can not decide the matter.

    There is no prospect that the Uk will withdraw its article 50 notification so the legal point is purely academic.

    There is a legal case in Ireland to try to have the issue decided by the ECJ. I predict the courts will – for political reasons – not want to rule on the matter. There may be other countries in the future who hold referendums on leaving the EU and the Remainers will again want to use the ‚leap in the dark‘ argument against leaving which is aided by the idea that Article 50 notification cannot be withdrawn. These future Remain campaigns would be undermined by an ECJ decision in 2017 that A50 is revocable. European federalists (which is what ECJ judges are) will feel there is more advantage in retaining the current ambiguity especially considering the zero percent chance of the Uk government withdrawing its A50 notification.

    Remoaners will have to abandon their wishful thinking about the Uk in order to better fight future referendums in the remaining EU27 countries.

  15. Leser Di 25 Apr 2017 at 09:02 - Reply

    „There is no prospect that the Uk will withdraw its article 50 notification so the legal point is purely academic.“

    I agree on that. Now, be only have to agree on the author, being an academic, is doing his job when discussing purely academic matters, and all is in order. 😉

    And though I’m not sure I agree with the terminology „remoaner“ or the decision to leave the EU in general, I do concur that the arguement most likely is carried by a feeling of regret over the decision. One may argue that time would be spent better on looking forward than looking backword. But that’s a matter of opinion – and who knows, maybe we’ll be reuinted under the blue ’n stars banner once again, or possibly a red and single star, or red and a half moon and a single star, or…

    Until then.

  16. Uk citizen Di 25 Apr 2017 at 23:49 - Reply

    The UK will never rejoin the EU. It has totally poisoned its reputation in the UK and continues to do so. 100 years from now Uk citizens will remember this nasty, undemocratic, dysfunctional, wasteful, power-hungry organisation and shake their heads in amazement that 48% of the population were once so stupid as to vote to be part of it. Nothing on Earth will make us go back to that.

  17. Leser Do 27 Apr 2017 at 13:09 - Reply

    Never is such a strong word.

    You’re trying to predict the world in a 100 years. Look back a 100 years. Would you have foreseen our situation as it is today?

    If so, dear friend, you’re a very, very smart person.

  18. NarusReport Di 5 Dez 2017 at 03:17 - Reply

    According to the latest report capturing the views of 31 legal experts published by the NarusReport, a legal periodical, 74% consider that the UK can unilaterally revoke the Brexit withdrawal notice. The report and underlying raw data are freely available.

    https://www.narusreport.com/reports/narusreport-large-majority-of-legal-experts-consider-uk-s-brexit-notice-unilaterally-revocable

    https://twitter.com/NarusReport/status/936102064324616193

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