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The question at issue is perhaps not whether the referendum was binding - it wasn't, under the UK "constitution" - but whether the invocation of A50 is binding on the UK and irrevocable. I.e. (i) Can the UK revoke it unilaterally, (ii) Can it be revoked with the agreement of the EU Council. and (iii), if so, does a revocation require unanimity on the Council.

A50 itself is silent on these questions which may be interpreted by the ECJ to mean that no legal right to revoke A. 50 exists. However, because of the separation of powers, and because the invocation of A.50 is essentially a political act, there may be no legal reason why the Council and the UK might not jointly agree to a revocation as a political act.

The only question remaining then would be whether the Council can do so by weighted majority vote, or whether unanimity would be required. A. 50 does make provision for the extension of the 2 year notice period under A.50, but only by unanimous agreement. As a revocation most closely resembles an indefinite extension, meaning the notice party never leaves, it seems reasonable to assume a revocation would also require unanimity.

Enter, stage right, some country with a grievance against the UK or the EU, and refusing to agree an indefinite extension/revocation unless their unique and perhaps entirely unrelated grievances are addressed. Gibraltar, treatment of migrants, Irish border backstop, UK budgetary rebate, various UK derogations anyone?

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Sep 22nd, 2018 at 11:38:25 AM EST
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