Fresh from his part in the deserved (legally-speaking) success of establishing that a notification under Article 50 is unilaterally revocable, the indefatigable Jo Maugham QC is adding another arrow to his quiver. But will it fly?

The background, for anyone who needs reminding, is that if the notification is not revoked then at 11pm on 29 March 2019 the UK will crash out of the EU on a No Deal basis unless before that time the Withdrawal Agreement on the table is agreed or Article 50 extended by unanimity among Member States. The EU have said that the Withdrawal Agreement is the best possible deal on offer and that it isn’t up for renegotiation. But it doesn’t seem to have any near enough support in the UK Parliament.

Probably no-one needs reminding that Jo favours a second referendum, but time is really getting too tight to hold one before the 29 March deadline. The Prime Minister has said that she will not seek to extend Article 50 and Jo thinks this a promise that she will not want to break. So writing in Prospect magazine, he suggests a wheeze to get enough breathing space for a second referendum without having to ask for an extension of Article 50.

His idea is to change the date in the Withdrawal Agreement from 29 March to 8 June. Yes this gives a nod to sovereignty as it is the Queen’s Birthday but the specific date chosen doesn’t matter all that much. There just has to be enough time to set up and run another referendum before this new date so it could as well be Mayday for pun-ny allusion both to the Prime Minister and the international distress call, or the Summer Solstice as the time of greatest illumination. It’s quite a neat idea, but would it work?

To work, it has to be possible both politically and legally. From the political point of view the Withdrawal Agreement would have to changed when the EU have said they won’t re-open negotiations. However, as nothing of substance would be changed i.e. the detailed provisions in its 585 pages would remain exactly the same bar the date, that doesn’t seem too great a barrier as the EU wouldn’t have to resile from its ‘best deal available’ position at all. As an aside, leaving aside the Prime Minister’s ‘promise’ not to seek an extension, it might be thought that this way is preferable to an extension because changes to the Agreement only require QMV rather than unanimity, but Donald Tusk has always been clear that he will only proceed with a Withdrawal Agreement based on consensus. The UK Parliament would have to vote for the amended agreement too when it won’t vote for the existing one, but obviously it would be part of a package that included a second referendum and Jo will assume (probably correctly) that such a package would attract sufficient support to get through.

However, even if everyone would like it to happen it has to be legally possible too. Jo points to the Article 50(3) and notes that the Treaties cease to apply to a Member State when the Withdrawal Agreement enters into force. Well yes, but that’s not all its says…

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.

We can ignore the ‘unless’ so the question begged by Jo’s idea is whether absent an extension the date of entry into force could be more than two years after the notification. It seems to me fairly clear that this is not contemplated by the provision. The ‘that’ in ‘failing that’ can refer only to ‘entry into force of the withdrawal agreement’ i.e. failing entry into force of the withdrawal agreement, the Treaties shall cease to apply two years after the notification. If the date of entry into force had been agreed to be three years after the notification and as result the Treaties continued to apply beyond two years but the Member State in question tore up the agreement just before the three years were up, then the withdrawal agreement would not enter into force and ‘failing that’ the Treaties will have had to have ceased to apply a year previously. That doesn’t seem to be a tenable result. Instead it seems that the provision must mean that failing entry into force of a withdrawal agreement within two years, the Treaties cease to apply and the Member State crashes out NoDeal-wise.

On the other hand, there might be thought to be the possibility of some wriggle-room looking at the ECJ judgement in the Article 50 case. The court said…

a Member State that has reversed its decision to withdraw from the European Union is entitled to revoke that notification for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that provision, has not expired.

It could be argued that this means that the two year period only applies where an agreement has not been concluded. But for this to work, Article 50(3) would have to say something quite different i.e.

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing the conclusion of a withdrawal agreement, 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 court is of course the guardian of the Treaties and as such can decide what they mean. However there’s a big difference between deciding a matter on which the Treaties are silent (as indeed whether an Article 50 notification can be revoked) and deciding literally to change the words of a Treaty. The ‘that’ in Article 50(3) can’t possibly refer to something that isn’t in the Article. Nor do Article 50(2) and 50(3) supplemented by the ECJ decision on revocability appear anything other than ‘acte claire’ — two years after the notification, unless an agreement has been concluded and come into force or the period has been extended or the notification has been revoked, the Member State in question crashes out. This provides a complete specification duly respecting the sovereignty of the Member State in question and the rights of the other Member States involved. If it has not proved possible to agree a Withdrawal Agreement that will come into force in time the departing Member State must get everyone else to agree to an extension or unilaterally revoke its notification if it doesn’t want to crash out.

To my mind this is why there is a lower QMV barrier to conclusion of a withdrawal agreement and a higher unanimity barrier to extension, the Treaty intending that the procedure be carried out quickly and intentionally putting pressure on the departing Member State. If Jo’s idea worked then a Member State’s veto on extension could effectively be over-ridden. Against that it could be argued that because the withdrawal agreement must have been concluded it wouldn’t in practice relieve any negotiating pressure on the departing member State. However, one might have doubts about that as another thing Article 50 is silent on is the possibility of changing a withdrawal agreement after its conclusion but before it comes into force and whether this would require only QMV or unanimity.

For these reasons I think this might turn out to be a broken arrow and so even if Jo’s aim is true, not hit the target.

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