Could a "Caretaker" Government Revoke Article 50?
Parliament has returned, so what happens next? If an election bill of one kind or another cannot be passed, and the FTPA cannot be repealed, it seems to me that Boris Johnson could face an early Vote of No Confidence – indeed if one isn’t initiated by Jeremy Corbyn it’s quite possible Boris Johnson will initiate one himself. The Government will most likely lose – not least because they want to lose. Then, could Corbyn form a new Government, or would a remain white-knight turn up in the shape of Ken Clarke take over to extend or revoke article 50?
Would the EU extend? For what purpose? Presumably to allow for a General Election or a second referendum. There isn’t a majority in Parliament for a se
cond referendum. Most MPs are aware of the division the first referendum caused and are loathe to put the country through that again any time soon. The chances are we’ll have a General Election. Remain-supporting MPs might not actually want to risk a General Election. If the Tories and the Brexit Party can form a pact, a no-deal Brexit is a likely outcome of a more pro-Brexit Parliament.
So will the MPs simply revoke? It’s mentioned frequently that the UK can unilaterally revoke article 50 at any time following the ECJ ruling in Wightman. But is it true? You may recall one argument against unilateral revocation was “what’s to stop a member state revoking A50, only to invoke it again shortly afterwards?” In actual fact it’s not quite true to say that the UK can unilaterally revoke A50 at any time, and indeed the ruling has a section “Conditions and limits applicable to the unilateral revocation” making that very point, with good faith caveats and other provisions to prevent a swift revoke/invoke happening. Paragraph 156 of ECJ Case C‑621/18 states:
“Since it entails the reversal of a previous decision of a constitutional nature, the change would require an alteration of the governing majority, the holding of a referendum, a ruling by the highest court of the country annulling the withdrawal decision or some other action that would be difficult to implement and would require the use of protracted and complex legal procedures.”
It seems perfectly clear to me, that a “caretaker” UK Government could not revoke Article 50. There needs to be a referendum or, more plausibly, a General Election.
Unless of course the EU conveniently overlooks this part of the judgement. They could, but revoking Article 50 without any public consultation of any kind will almost undoubtedly lead to a pro-Brexit Government being elected and A50 being re-invoked – then the EU will be in a new mess of its own making.