Britain can still cancel Brexit by revoking Article 50 without the consent of other EU member states, the European Court of Justice’s advocate general has said. The EU’s top court has been considering the question of whether the UK can decide not to go ahead with Brexit at this late stage after a legal challenge…
Britain can still cancel Brexit by revoking Article 50 without the consent of other EU member states, the European Court of Justice’s advocate general has said.
The EU’s top court has been considering the question of whether the UK can decide not to go ahead with Brexit at this late stage after a legal challenge by campaigners.
The formal legal recommendation cites Britain’s “sovereignty” in treaty-making matters and says withdrawal “may be revoked at any time” during the negotiating period, as long as it is done in good faith.
The statement is significant because it would mean Britain would have the power to stop a no-deal Brexit from happening, even if Theresa May’s deal is voted down next week.
UK government lawyers also have already conceded that parliament has the power to instruct the Government to revoke Article 50, meaning MPs worried about a no-deal would have powers to stop one from happening.
EU lawyers had argued that the UK needed a vote of other member states if it wanted to back out, while the British government had said the Court should not rule on the question because it was hypothetical.
Though the advocate general’s opinion is not a final legal ruling, it is very unusual for the full court to overturn its recommendation. A final ruling by a panel of judges is due in the next few weeks.
The Government has been trying to convince MPs to vote for Theresa May’s Brexit deal by warning that voting it down could trigger a no-deal.
The EU has repeatedly said the options available to Britain are the deal on the table, no-deal, or no Brexit. However it was legally disputed whether all EU member states would have to unanimously agree to let Britain stay.
Article 50 spells out clearly that the 27 countries would need to give their consent for an extension of the negotiating period, but is silent on the procedure needed to revocation.
The advocate general dismissed UK arguments that there should be no ruling on the issue, stating in his opinion that “dispute is genuine, the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute”.
The top legal authority said the clause was revocable as long as a member state wishing to withdraw it was not acting in an “abusive” manner. It stated: “The Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.”
It argued that as a general principle of international law “withdrawal from an international treaty may be revoked at any time” before it takes effect.
The opinion adds: “Advocate General states that Article 50 TEU is an expression of the principle of respect for the national identities of the Member States, in allowing them to withdraw if they consider that that national identity is incompatible with membership of the EU. In his view, there is no reason that, conversely, that Member State may not link its identity to its integration into the EU.”