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United Kingdom invocation of Article 50 of the Treaty on European Union
Differing views have been expressed on whether the UK's invocation of Article 50 can be revoked.

British government lawyers had argued that the Article 50 process could not be stopped.[77] An Irish court case challenging this view was later abandoned.[78] Lord Kerr has asserted that the Article 50 notification can be revoked unilaterally.[79]

UK barrister Hugh Mercer QC noted before Article 50 was invoked that: "Though Art. 50 includes no express provision for revocation of the UK notice, it is clearly arguable for example on the grounds of the duties of sincere cooperation between member states (Art. 4(3) of the Treaty on European Union) that, were the UK to feel on mature reflection that leaving the EU and/or the European Economic Area (EEA) is not in the national interest, the notice under Art. 50 could be revoked."[80]

US law professor Jens Dammann argues: "there are strong policy reasons for allowing a Member State to rescind its declaration of withdrawal until the moment that the State's membership in the European Union actually ends" and "there are persuasive doctrinal arguments justifying the recognition of such a right as a matter of black letter law".[81]

EU politicians have said that if the UK changes its mind, they are sure a political formula will be found to reverse article 50, regardless of the technical specifics of the law.[82] According to the German finance minister Wolfgang Schäuble, "The British Government has said we will stay with the Brexit. We take the decision as a matter of respect. But if they wanted to change their decision, of course, they would find open doors."[83]

On 29 March 2017, the EU Commission stated "It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification."[84] Similarly, the European Parliament Brexit committee headed by Guy Verhofstadt has stated that "a revocation of notification [by Article 50] needs to be subject to conditions set by all EU27, so that it cannot be used as a procedural device or abused in an attempt to improve on the current terms of the United Kingdom's membership".[85] [86] The European Union Policy Department for Citizens' Rights and Constitutional Affairs has stated that a hypothetical right of revocation can only be examined and confirmed or infirmed by the EU institution competent to this purpose, namely the CJEU. [87]

However, in July 2016 former German Supreme Court judge Udo Di Fabio had argued, on the basis of international law, that a triggering of Article 50 can be revoked: "in EU law, the declaration of intention to leave is not itself a notification of withdrawal; rather, at any time and at least until the Treaty becomes inapplicable, it can be retracted or declared to have become redundant".[88]

In October 2017, barrister Jessica Simor QC of the leading London law firm Matrix Chambers lodged a freedom of information request to the UK Prime Minister for disclosure of legal advice which, she claims, states that the UK government can withdraw the Article 50 application at any time before 29 March 2019; she notes that Article 50 provides only for notification of an intention to withdraw and contends that such intention can be changed at any time before actual withdrawal.[89]

In February 2018, a crowd-funded petition by a cross-party group of Scottish politicians for judicial review of the notice was rejected by Scotland's Court of Session, but in March the Court overturned that decision.

More clutching at straws. It is natural for lawyers to seek to extend their sphere of influence, but there is a difference between a decision being reversed by agreement, for political reasons, and it being reversed by one party, unilaterally, because it has an absolute legal right to do so. Legal rights have to be specified in law. A. 50 does not do so.

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by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Nov 27th, 2018 at 09:05:44 PM EST

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