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10 December 2018

Why the European Court of Justice’s ruling that Britain could revoke Article 50 doesn’t change anything

For now, pro-European victories will continue to be confined to the courts.

By Stephen Bush

Article 50 – the provision that begins a member state’s exit from the European Union – can be unilaterally revoked, the European Court of Justice has ruled.  As far as British politics goes, it means that, in theory, the United Kingdom can revoke its Article 50 notification and retain its European Union membership without the loss of its opt-outs, rebate or without having to reopen the Gibraltar question.

As far as the wider politics of the bloc goes, the Court has defied the European Commission’s fears that creating a unilateral right of revocation would allow a departing member state to trigger and revoke at will, making a mockery of the exit process. The closest to a good faith clause is that revocation must be subject to “a democratic process” – the nature of that process of course will vary from member state to member state but it means that the Court has left itself some wriggle room to declare that the revocation of Article 50 by a member state with the express intention of increasing its negotiation time is not in good faith and to strike that revocation down.

But all that’s a question for the future, if at all. What does it mean for the United Kingdom? Constitutionally it means that Article 50 can be revoked in a number of ways: parliament can vote to revoke it, a referendum could opt to Remain after all, and potentially the Prime Minister could just revoke if they wanted, as the British constitution gives the power to make or unmake treaties to the executive, not the legislature. (Whether the legal precedent of the Supreme Court ruling that parliament must vote to trigger Article 50 as it affects the rights enjoyed by British citizens means that parliament must also vote to undo that revocation is not clear, though the balance of opinion among the lawyers I spoke this morning is that parliament would have to vote.)

Practically it means… not very much. Bluntly we are lightyears away from having a parliamentary majority in favour of revoking Article 50 without a referendum. That means that the route to remaining in the European Union would run through an extension of Article 50 – which is subject to the veto of other member states – and ultimately revocation if that referendum is won. British pro-Europeans are taking far too much comfort from the idea that this means that no one could claim that remaining in the European Union means joining Schengen, the Euro or losing the rebate. There was no chance of Turkey joining the European Union, or the United Kingdom being forced to be involved in the creation of a European army either as those were still dominant features of the last referendum campaign, and you better believe that Euro membership will be a feature of the next one.

There’s a wider point here, and they feed into two reasons why I still think the most likely outcome of a referendum re-run is a more emphatic version of the same answer. The first is that pro-Europeans don’t really seem to have absorbed the lessons of the last contest, which is that you have to overcome decades of unchallenged cultural Euroscepticism and a largely hostile press. Don’t forget that the biggest and most widely shared content on Facebook in the last referendum wasn’t anything devised by Cambridge Analytica but the Daily Express. The second is that if even the most committed of British pro-Europeans cannot bring themselves to support the idea of Schengen, if free movement is still largely spoken of as something to be controlled with ID cards and benefit sanctions, it is not all clear how that cultural opposition to British membership of the European project can be overcome. And until those things change, pro-European victories in Britain will continue to be confined to the courts.

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