Can Article 50 be untriggered – a question of politics or law?

 

We hear so often in our lives, “the law is the law”, yet when politicians are involved things are less clear. They may hold more to the adage “where there’s a will, there’s a way.” Cue the now infamous article 50, which is rather loose in construction and has never before been invoked, and we are very much in foggy territory. We are familiar with how roomy the interpretation of this article could be, because a Senior Partner in Kreab was one of the politicians involved in drafting it! The article itself is short and quite vague – purposefully so. A primary political objective was for it to act as a deterrent against it ever actually being used – hence the somewhat unfavourable terms for a notifying party. Above and beyond that, the wording simply offers a legalistic procedural instruction as to how the process should be handled. Several high profile politicians and civil servants have recently implied that in some way the Article may never be triggered or that its notification could be retracted once given, as long as it happens before the expiry of the two year negotiation period. Others interpret the article as a point-of-no-return. A number of lawyers have said that nothing in article 50 explicitly excludes a retraction. In short, there is much uncertainty surrounding the application of this article.

Listening to senior UK cabinet ministers including the PM it is difficult to imagine that triggering Article 50 would be done cynically with the intention to revoke it later on. Yet if the Government did have a genuine change of heart, say after obtaining a sub-optimal outcome from the negotiations, there would be some on the other side of the Channel who would baulk at letting the Brits so easily off the hook. We would advise HMG not to trigger the Article until it was absolutely clear about what it wanted to achieve at the end of the process.

One thing we feel rather certain about: there will be a number of legal and political tussles on how Article 50 will ultimately be interpreted and applied. After all we have scant few precedents to guide us!

By Sebastian Remøy. For more on Kreab, click here.