Britain can withdraw its notification to leave the EU without the permission of other remaining member states, according to advice given to judges at the European Court of Justice that represents a significant success for anti-Brexit campaigners.
The non-binding legal opinion — which contradicts arguments made by Britain and other EU institutions — sets the stage for a landmark ruling by Europe’s highest court with significant implications for the political debate over Brexit.
The ECJ’s advocate general argued that judges should allow for the unilateral revocation of the Article 50 exit clause, which was invoked by the UK in 2017, rather than see it as a request subject to EU approval.
Manuel Campos Sánchez-Bordona wrote in his opinion: “There is nothing, in my view, in Article 50 which envisages it as a ‘one way street with no exits’, pursuant to which all that a Member State could do, after notifying its intention to withdraw and subsequently reconsidering its decision, would be to wait two years to leave the European Union and immediately ask to rejoin.”
The development comes a week after anti-Brexit campaigners, led by a group of Scottish MEPs, went to the court to argue for the UK’s right to cancel a two-year exit process. While non-binding, the views of advocates general are followed in most ECJ rulings.
Such a ruling would mean the British parliament could in effect prevent a no-deal Brexit by ordering the government to revoke Article 50. A majority of MPs are against a no-deal Brexit, but there have been questions over how they would be able to impose their will on negotiations.
John Kerr, a former British diplomat and lawyer who was involved in drafting Article 50, said the opinion showed that the UK “can choose to change course”. There “would be no price to pay — political or financial — if we were to take back the Article 50 letter”, said Lord Kerr, who is now a campaigner for the UK to remain in the EU.
Lawyers from the European Commission and European Council have argued that any revocation has to have consent from the rest of the EU27 — to protect the exit clause from being used as a threat by governments wanting a better deal to stay in the EU.
The UK government has argued the issue is not relevant for the ECJ. Downing Street said the opinion “does nothing, in any event, to change the clear position of the government that Article 50 is not going to be revoked”. Pro-Remain politicians celebrated the decision, while Brexiters, including Nigel Farage, suggested it was part of a co-ordinated UK-EU effort to keep Britain in the bloc.
In Tuesday’s opinion, the advocate general recommended that any final legal ruling from judges on Article 50 should support the right of unilateral withdrawal of a request to leave, as long as this takes place within the two-year timeframe set up by the exit clause.
Cancellation should be considered valid as long as the withdrawing government notifies the European Council — the body of EU governments — and “does not involve an abusive practice”, the opinion found.
The opinion will boost anti-Brexit campaigners less than a week before MPs are due to hold a “meaningful vote” on Theresa May’s exit agreement. The petitioners have said that should any deal be rejected the UK would have the option of cancelling Brexit by simply taking back the Article 50 withdrawal notification.
The pound rose to its highest level of the day against the dollar after the ruling, up 0.8 per cent to $1.2817. Sterling was 0.3 per cent stronger against the euro.
A summary of the opinion said: “A revocation by mutual consent of the departing member state which changes its position and the EU institutions with which it is negotiating its withdrawal is possible. However, this would not prejudice unilateral revocation, which the departing member state always maintains under Article 50.
“To accept that the European Council, acting by unanimity, should have the last word on the revocation increases the risk of the member state leaving the EU against its will, since the right to withdraw from (and, conversely, to remain in) the EU would no longer be subject to the control of the member state, its sovereignty and its constitutional requirements,” it said.
Jo Maugham, a barrister and one of the campaigners in the case, said the opinion “puts the decision about our future back into the hands of our own representatives — where it belongs”.
“I’m sure MPs will now search their consciences and act in the best interests of their country,” he said.
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