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Thanks for this. I was aware of the general history, but have tended to discount its importance. Very few legal texts have only one author and most have to go through complex approval processes with possible minor tweaks along the way. Certainly the people with ultimate responsibility for approving a text may read it quite differently from the way the original author intended - even in cases where there was only one identifiable individual author.

I could claim ownership of all manner of policy documents for Diageo. In reality I "borrowed" a lot of ideas from elsewhere and any documents I produced had to go through lengthy many layered approval processes which might have tweaked them at some stage or meant something different to different people within the approval process. So even Lord Kerr may not be the initial author - he may merely have approved a text original written by some junior lawyer in the secretariat. Quite often you genuinely forget where you got your ideas from.

At the time Lord Kerr was head of the Convention secretariat that was trying to draw up a a formal EU Constitution - which was later rejected by referenda in France and Holland. Parts of that Treaty were later incorporated into the Lisbon Treaty - again a different context and time. Lord Kerr was anxious to provide a formal mechanism to disadvantage some dictator wanting to leave the EU in a huff - never imagining it would be the UK which was the first to invoke it.

All of which is a long way of saying that a text dreamed up in one circumstance with one set to intentions may end up serving a very different purpose  in another. The ECJ has the task of interpreting it in the current context, but must also be wary of producing an unwanted precedent for the future. Laws are generally framed to provide the institutions operating within their framework some discretion and freedom of interpretation.

It seems to me the very short, sparse, and clear style of A.50 provides the EU Council with considerable discretion. I doubt the ECJ will want to interfere with that. The EU tends to operate by consensus which gives individual members some scope to block initiatives, but much less to initiate actions against the wishes of others.

The more I read Lawyers prognosticating on this issue, the more I realise that lawyers are not politicians and have little ability to imagine the political ramifications of some of their ruminations. It would be crazy to allow an unregulated unilateral right to withdraw an A.50 notification after all the disruption and additional costs it has occasioned, not to mention the consequences of numerous members invoking and revoking A. 50  notifications for tactical purposes during other negotiations and disputes.

If the ECJ were to announce that an A.50 invocation is unilaterally revocable, I would be all in favour of the EC council deciding not to pay any heed to A. 50 invocations until they become irrevocable after 2 years. Let members who wish to leave just leave, and negotiate with them as third parties afterwards. The EU is actually doing them a huge favour by offering to negotiate interim and transitional arrangements to minimise disruption while negotiations are ongoing.

Not that the EU can expect to get any thanks for it.

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by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 12:18:36 PM EST
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