A group of lawyers are putting together a case to suggest that Article 50 has not yet been triggered.
In the UK election of 2017, both the Tory and Labour parties accepted that Brexit was inevitable and that they would both work towards it. Actually, for all the critiques aimed at the Tories, they won more votes in the last election, it is just that Labour did too. But the parties that were vehemently anti-Brexit: Lib Dems, SNP and the Green Party did not do so well. See it from that point of view, and you would expect the odds of Brexit happening, and indeed happing within the next two years, to have risen to a level that one might describe as a foregone conclusion.
And yet oddly, the election results seem to have afforded the anti-Brexit camp a new lease of life. Their cause is helped by the fact that the UK was the slowest growing economy in the EU in Q1, and frankly the economic runes for the rest of the year are not so good. Then Vince Cable, the clear favourite to be the next leader of the Lib Dems – he is, after-all, the only candidate – told Andrew Marr that he is coming to the view that Brexit may not happen.
But now the issue of Brexit, and whether Article 50 has actually been triggered, is being questioned.
We now know thanks to the case brought forward by Gina Miller, that only parliament has the power to enact Brexit – well that shouldn’t really surprise anyone, we live in a parliamentary democracy.
But the EU Withdrawal Act, voted for by the House of Commons, states: “The Prime Minister may notify, under Article 50 of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.”
But is the wording too vague? Some lawyers think it is. Article 50 stipulates that: “Any member state can withdraw from the Union is accordance with its own constitutional requirements.” So, that’s the first important point, if a country’s decision to leave is not deemed constitutional, it can’t leave, that’s why the Gina Miller case was so important.
Article 50 also stipulates that: “a member state which decides to withdraw shall notify the European Council of its intention.”
The UK Act does not implicitly state that the UK intends to withdraw from the EU, rather it allows the Prime Minister to notify the EU of the UK’s intention to leave.
That difference in wording may seem pedantic – and indeed the public would not react well if this very slight ambiguity was used as a reason to stop Brexit.
But lawyers can be pedantic – maybe that’s their job.
Some argue that the loophole is so glaring that it must have been deliberate.
In short, they say Article 50 has not been triggered.
And when the two years are up, if the mood of the country has changed, the UK can turn around and say “well, as you know, we have not formally triggered Article 50, merely notified you of our intention to leave, and we have now decided not to leave.”
Is such an argument valid? That surely boils down to the mood of the country in two years’-time, maybe it is a get-out clause in the event that this mood changes.