The second issue is whether this is possible from the perspective of the Article 50 TEU (above). Here, things are a little more opaque. On a literal interpretation of the Article, it does not seem to provide for the suspension of the withdrawal process, but the CJEU has never tied itself to an exclusively literal approach to the European Treaties. Instead, as former CJEU Advocate General and retired Irish Supreme Court judge, Nial Fennelly, explains:
The characteristic element in the Court’s interpretative method is … [the] “teleological” approach, … that it is necessary to consider “the spirit, the general scheme and the wording,” supplemented later by consideration of “the system and objectives of the Treaty.” In more recent years, the idea of “context” has been added, and the prevailing wording, varying minimally from case to case, has been that it is necessary when interpreting a provision of Community law to consider “not only its wording, but also the context in which it occurs and the objects of the rules of which it is a part.”
I suspect that the CJEU would, on this basis, be able to find that the Article 50 process could be suspended or abandoned, but I would not wish to predict whether it would do so. It is a Court often noted for its realpolitik and pragmatism, but there are limits to how far it can or will go to accommodate political agreements. It might perhaps be asked for an advisory opinion on the issue. If the CJEU finds that suspension or abandonment of the Article 50 process is possible, if a second Brexit referendum were to be in favour of remain, if Parliament therefore indicated its intention not to ratify the withdrawal agreement, if the UK government consequently sought the suspension or abandonment of the Article 50 process, and if the other Member States – via the European Council – agreed, then the Article 50 process could be suspended or abandoned.
If suspension or abandonment is not possible, then the issue will turn on Article 50, paragraph 2 (above), which provides that the EU Treaties cease to apply to the departing Member State in two circumstances: either on the entry into force of the withdrawal agreement, or two years after Member State notifies the EU that it wished to begin negotiations for withdrawal “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. If a second Brexit referendum were to be in favour of remain, and Parliament therefore indicates its intention not to ratify the withdrawal agreement, the first alternative in Article 50 paragraph 2 is satisfied, and the withdrawal agreement would not come into force on that ground.
More complications arise under the second alternative, by which the withdrawal seems automatic after two years “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. So, the question is: could some form of words be agreed “to extend this period”indefinitely? And even if so, would the CJEU uphold it? Again, I would not wish to predict whether it would, and it might again be asked for an advisory opinion on the issue.
Rather less susceptible to a successful challenge would be a form words that clove more closely to Article 50 and did not expressly say that it would extend the period “indefinitely”. Instead, it might provide that the period would be extended until a withdrawal agreement enters into force. That could – and, in practice, probably would – amount to an indefinite extension, but it would be much closer to the spirit of Article 50, and well within the linguistic flexibility that has been shown in Treaty negotiations in the past. As before, I would not wish to predict whether the CJEU would uphold such a formulation, and an agreement to this effect might form the basis on which it could be asked for an advisory opinion on the issue. If the CJEU approves a form of words by which automatic withdrawal would be postponed until a withdrawal agreement enters into force, if a second Brexit referendum were to be in favour of remain, if Parliament therefore indicated its intention not to ratify the withdrawal agreement, if the UK government consequently sought the postponement of automatic withdrawal until a withdrawal agreement enters into force, and if the other Member States – via the European Council – agreed, then the second alternative in Article 50 paragraph 2 is satisfied, and the withdrawal agreement would not come into force on that ground.
I am even less clear on this EU issue than I am on the UK constitutional issue above, and I equally welcome comments as to whether this is legally possible. I leave the question of whether this is likely to the politicians.
Let us therefore assume that the UK would negotiate a withdrawal agreement pursuant to Article 50, and put it to the people in a referendum. Let us further assume that the result in that referendum is in favour of remain, such that the withdrawal agreement is rejected, and Parliament therefore declines to ratify that agreement and bring into force. In such circumstances, my question is this: could the UK rely on an agreement with the other Member States – via the European Council – either that the Article 50 process would be suspended or abandoned, or that any automatic withdrawal would be postponed until a withdrawal agreement enters into force? In either case, the result would be that the Article 50 process would have provided route, via a second Brexit referendum, to ensuring that the UK would not have left the EU. Time may well tell. Meanwhile, answers on a postcard …