As the runaway train that is Brexit hurtles toward what appears to be imminent catastrophe, the question arises whether there is anything an embattled British Prime Minister Theresa May can do to save the day. The answer is yes: She can rescind Article 50 notification.
She should do so. Now.
The countdown to Brexit began precisely when Mrs. May notified Brussels almost two years ago of the United Kingdom’s intention to withdraw from the EU under Article 50 of the Treaty on European Union (TEU), which states that ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.’ She did so on the authority of parliament following a narrow victory for the Leave side in the national referendum of June 23, 2016.
Since then, the British government has been unable to negotiate a deal providing for an orderly Brexit that will satisfy both Brussels and the British parliament. As a result, the UK stands ready to crash out of the EU without any arrangements in place to avoid massive economic disruption, chaos at British ports, and—perhaps most importantly—a return to sectarian violence in Northern Ireland.
The UK could request an extension of the March 29 deadline, but the EU may only grant a short one, perhaps until the elections for the European parliament at the end of May. Given the current gridlock, there is no prospect of reaching an agreement by then if one has not been reached by now.
Calls from the Remain side are growing for a second referendum, or for cancelling Brexit altogether. Leavers call this a betrayal of the democratic will and hint ominously at civil unrest.
By rescinding Article 50, Mrs. May would not be cancelling Brexit, merely cancelling Brexit right now.
One can imagine two objections to this move, one legal and one political. The legal argument would be that she has no authority to do it. The political argument would be that it would be unacceptable to the British public. Neither argument holds water.
Legally speaking, the only thing compelling Britain’s exit from the EU on March 29, 2019 is Mrs. May March 29, 2017 Article 50 notification, which was indeed ‘in accordance with [British] constitutional requirements.’ In the Westminster system, parliament is supreme; the 2016 referendum was merely advisory. That the May government has thus far chosen to treat it as binding was a political decision, not a legal or constitutional obligation.
Parliament authorized Mrs. May to invoke Article 50 in the European Union (Notification of Withdrawal) Act 2017 of March 16, 2017—formally known as An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU—which simply states, ‘The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.’ Notice that it said ‘may’; it did not say ‘must’ or ‘shall.’ Notice also that it ‘conferred power’—it did not ‘direct.’
Mrs. May did not invoke Article 50 right away. She waited more than two weeks. She might have waited a month. Or two. Or twelve. Or left the task to a future prime minister. So she would be well within her legal rights to rescind her earlier notification, on the ground that intervening events have proven it premature. The EU has already said it would allow this.
Politically, revocation would be the least explosive of all the available options. The majority of British voters—who would now almost certainly choose Remain if given a second chance—would likely be ecstatic. Leavers would predictably howl, but they would not be able to claim that she had subverted the democratic will. Neither the 2016 referendum nor the Notification of Withdrawal Act called for Britain to leave the EU precisely on March 29, or on any other particular date.
Mrs. May could rightly claim that many Leave supporters, and possibly most, had not voted for a disorderly exit, and she could rightly insist that it would be irresponsible for her to proceed without an orderly one in sight.
By revoking Article 50 notification, in short, Mrs. May would simply stop the clock. This would allow time for passions to cool and open space for rational deliberation about which option is best for Britain in the long run—taking the best exit deal the EU will offer, holding a second referendum, or simply staying in the EU.
In the short run, the pound would soar, markets would rise, and the entire world minus the likes of Boris Johnson, Nigel Farage, Jacob Rees-Mogg, and Vladimir Putin would heave an enormous sigh of relief.
Revoking Article 50 notification would give Mrs. May an opportunity to demonstrate some judgment, courage, and leadership. Sadly, her track record to date provides little ground for optimism.