EU court: UK can unilaterally end Brexit

The reverse could give an unlikely boost to May’s bid to drum up support for her withdrawal deal


LUXEMBOURG • The UK should be allowed to reverse the Brexit process, according to an advisory opinion from the European Union’s (EU) top court that could give an unlikely boost to Prime Minister Theresa May’s bid to drum up support for her withdrawal deal.

“The possibility continues to exist” to revoke the Brexit notice “until such time as the withdrawal agreement is formally concluded,” Advocate General Manuel Campos Sanchez-Bordona of the EU Court of Justice (ECJ) said in a non-binding opinion yesterday.

This opinion — fought hard by May’s government — could actually turn out to be a weapon she can use to her advantage as the country heads into uncharted Brexit territory. The possibility that the UK can go back on its decision will be alarming to Brexit hardliners, encouraging them to grudgingly support May’s much-maligned roadmap for how the country should quit the block.

Still, a decision saying that Article 50 can be unilaterally revoked favours those who want to remain in the EU and could help those campaigning to thwart Brexit with a second referendum. It could also encourage some wavering pro-EU lawmakers to vote against May’s deal.

It would put “the decision about our future back into the hands of our own elected representatives — where it belongs,” pro-Remain lawyer Jolyon Maugham, who brought the lawsuit, said on Twitter.

“On this critical issue, I’m sure MPs will now search their consciences and act in the best interests of our country.” The pound jumped as high as US$1.284 (RM5.32) after the news.

After the ruling, a UK spokesperson reiterated that “it remains a matter of firm government policy that Article 50 will not be revoked”.

Purely Advisory
While the opinion is purely advisory, the Luxembourg-based court usually follows such advice. A date for a final rulings hasn’t been set yet but could still come this month, potentially even before the UK Parliament’s Dec 11 vote on May’s Brexit deal.

The opinion comes after the UK’s failure to kill the case and prevent it reaching the EU court. It lost a final attempt last month to derail the case after the country’s Supreme Court refused to hear an appeal on blocking the referral to the EU judges, whose power over British law many pro-Brexit supporters want to sever.

The “ECJ says the UK can revoke Article 50 without permission”, Nigel Farage, the man who spearheaded the Brexit campaign, said on Twitter. “Every effort is being made on both sides of the channel to stop Brexit.”

A Scottish court decided in September to seek the EU tribunal’s guidance in a case brought by Maugham, along with a group of Scottish and English lawmakers seeking to reverse the so-called Article 50 process.

Sanchez-Bordona yesterday rejected the arguments by the European Commission and EU governments, that revocation of Article 50 can only happen with the unanimous backing of the remaining 27 nations.

This would be “incompatible” with Article 50, he said.

He also rejected the UK government’s position that the case is purely hypothetical and therefore inadmissible.

“The dispute is genuine, the quest ion is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute,” Sanchez-Bordona said.

The issue is so complicated because while Article 50 of the EU’s Lisbon Treaty tells member states how to start the process of leaving the bloc, it offers no help on what to do if they change their mind.

At the Nov 27 hearing before the full EU court, lawyers for the lawmakers behind the case, argued that legal certainty needs to come before politics and that the UK Parliament, which has the power to decide, needs to have certainty about the law.