The Brexit process is reversible and the British people have the right to change their minds should they want to, Lord John Kerr, who played a central role in drafting Article 50, says in a speech tomorrow [Friday] in central London hosted by the Open Britain campaign.
Lord Kerr will say that the Article 50 letter that Theresa May sent in March this year can be unilaterally withdrawn. “We are not required to withdraw just because Mrs May sent her letter”, he will say. “We can change our minds at any stage during the process.”
He will say that “Mrs. May's letter was only a notification of the UK's "intention" to withdraw. Intentions can change. We still have all the rights of a member-state, including the right to change our minds.” He points to statements from European legal experts and leaders including Emmanuel Macron, Donald Tusk and Antonio Tajani to prove that the door is open for the UK to change its mind on Brexit, despite the fact that “Putin and Trump would be disappointed” if that happened.
He will say: “As new facts emerge, people are entitled to take a different view. And there's nothing in Article 50 to stop them. I think the British people have the right to know this – they should not be misled.”
John Kerr served as Britain’s Permanent Representative to the EU from 1990-1995, as UK Ambassador to the United States from 1995-1997, and as Permanent Secretary of the Foreign Office from 1997-2002. In 2002-2003 he acted as Secretary-General of the European Constitutional Convention, which drafted Article 50.
Extracts of Lord Kerr’s speech are below:
*CHECK AGAINST DELIVERY*
“While we're in, we're in. While the divorce talks proceed, the parties are still married. Reconciliation is still possible. The Article requires the parties to negotiate the "arrangements" for our withdrawal; but we are not required to withdraw just because Mrs. May sent her letter. We can change our minds at any stage during the process.
“The fact is that a political decision has been made, in this country, to maintain that there can be no going back. Actually, the country still has a free choice about whether to proceed. As new facts emerge, people are entitled to take a different view. And there's nothing in Article 50 to stop them. I think the British people have the right to know this – they should not be misled.
“Article 50 emerged 15 years ago, in a Convention of 200 Parliamentarians from all the countries who then were members of, or were then negotiating to join, the EU. I was their Secretary-General.
“One of their concerns was to demonstrate that the Union was a voluntary partnership of sovereign nation-states, based on treaties between states, not the incipient super-state of Eurosceptic nightmares. Including an Article setting out a procedure for orderly divorce was one of several ways of underlining the voluntary nature of the Union. Though we called our product a Constitutional treaty I can't recall anyone suggesting adding any “We, the People…" claim to a legitimacy going over the heads of elected national governments.
“Nor do I remember any serious opposition to the idea, enshrined in the Lisbon Treaty in what became Article 50, that nation-states were entitled to change their minds, and leave if they so choose. Equally I'm certain no-one dreamed that in 2017 a member state would trigger the procedure, as Mrs. May did on 29 March.
“Now that we're in the procedure, it's important to understand it; and I am concerned that some aspects of the Article seem to me rather inadequately reflected, or indeed misinterpreted, in our current public debate.
“First, and crucially, as required by the Treaty, Mrs. May's letter was only a notification of the UK's "intention" to withdraw. Intentions can change. We still have all the rights of a member-state, including the right to change our minds and our votes, as member-states frequently do, for example after elections. The Article is about voluntary withdrawal, not about expulsion: we don't have to go if at any stage, within the two years, we decide we don't want to.
“The clause that says that "once we're out, we're out" says just that, and only that. If we had wanted declaring an intention to go to be the Rubicon moment, if we had wanted a notification letter to be irrevocable, we would have drafted the clause to say so. But we didn’t, and the clause doesn’t. So, the die is not cast irretrievably. The letter can be taken back.
“That has subsequently been confirmed by formidable legal experts. Let me cite just two. Jean-Claude Piris, Legal Counsel to the Council in my Convention days, is clear that “even after triggering Article 50, and notifying the EU of its intention to leave, there is no legal obstacle to the UK changing its mind." Sir David Edward, UK Judge in the ECJ when the Article was drafted, says the same.
“The Government give the impression that the Rubicon has been crossed, but they currently refuse to publish their Law Officers' Opinion: I think we know why. They have been careful not to say that we could not take back Mrs. May's letter. During the Miller case, and at the Despatch Box in both Houses, Government spokesmen have consistently said only that "as a matter of firm policy ", we won't take it back. That formula in itself confirms that we could take it back.
“Supposing we were to exercise our right to withdraw Mrs. May's letter, how would leaders across the Channel react? We know from what they have said: they would applaud. Let me cite a couple of Presidents…
“If the UK wanted to stay, everybody would be in favour. I would be very happy.”
That's Antonio Tajani, President of the European Parliament.
“It is in fact up to London how this will end: with a good deal, no deal, or no Brexit.”
That's Donald Tusk, President of the European Council.
“Or take the Taoiseach, Leo Varadkar … “The door remains open for the UK to stay in the EU." Yes. It does. And President Macron has said the same.
“Most EU leaders think Brexit would be a disaster, worst for us, but bad for all. Most believe that, in a world of Trump and Putin, of Daesh and Islamic State, of Asian competition, of climate change and migration misery, Europe should stick together and work together. They of course recognise that we have every right to take a different view, but they hope that in the end we won't. They value our contribution to the Union's vitality, remembering with respect how Mrs. Thatcher fought to create the Single Market, and John Major and Tony Blair insisted, when the Wall came down, that we must bring in the new democracies of Central and Eastern Europe.
“They often find us difficult partners, annoyingly pragmatic and practical. But they now find us puzzlingly dogmatic and doctrinaire on Brexit. If we were to change our minds, Putin and Trump would be disappointed, but our near neighbours, and our true friends across the Atlantic and in the Commonwealth, would cheer. I think the country should know that.”