In the beginning, there was article 50…

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In a nutshell, article 50 of the Treaty on the European Union is the clause by which a member state notifies the European Council that it wishes to withdraw from the EU, beginning a countdown to exit in which the remaining members and departing state must “[set] out the arrangements for its withdrawal, taking account of the framework for its future relationship with the EU”. It’s the period in which the UK negotiates its divorce settlement, and ends at 11pm on 29 March 2019 (114 days and counting!) Provided that MPs pass the European Union (Withdrawal Agreement) Bill (the “Withdrawal Bill“), little will change when the clock strikes 11. But what happens if the deal fails, and we approach 29 March with no agreement in place?

The government’s position is that the UK will leave with no deal, but if a legal challenge brought by a cross-party group of Scottish MPs, MEPs and MSPs succeeds, that might change. Taking its case to the European Court of Justice, the group has asked for an adjudication on whether the UK can unilaterally withdraw its article 50 notification, a question as yet untested given that no member state has ever left the EU.

If the answer is ‘yes’, the result will have implications far beyond the world of constitutional lawyers and foreign courts, and goes to the heart of whether the government could prevent a ‘cliff edge’ Brexit by withdrawing the UK’s article 50 notification without the permission of the EU27. Put simply, it may change the question from ‘deal or no deal?’ to ‘deal, no deal or no Brexit?’

All this leaves open the prospect that a simple letter to Donald Tusk might prevent the very thing that started with, well, a simple letter to Donald Tusk. As the QC co-ordinating the case has said, “The article 50 case is highly significant. It could answer the question how the majority of MPs against no deal together act to prevent one. Simples – they direct the Govt to revoke”.

Stay tuned for more – we’ll post the result and our analysis when the ECJ delivers its verdict.

For help with preparing your business for Brexit please contact Luke or one of the team.