Introduction

The Advocate General of the European Court of Justice on 4th  December 2018 held, in an advisory opinion, that the UK could unilaterally revoke its decision to leave the European Union and stay a full member of the trading bloc without the need to obtain consent of the other EU 27 member states. If followed by the full European Court the UK Parliament will have a further option to consider if it rejects the draft Withdrawal Agreement agreed with Brussels by UK Prime Minister Theresa May. If  that option is exercised the UK may well find itself remaining a full member of the European Union after all !

Why is Article 50 Important?

Under Article 50 of the Treaty on European Union (TEU) a Member State may withdraw from the EU.  This involves notifying the European Council of that country’s intention to do so. There is then a two year period in which the parties seek to agree withdrawal terms and the basis for a future trading relationship. If there is no agreement after the two years, provided there is no extension, then the EU treaties cease to apply to the withdrawing state.

The UK Prime Minister has now come back from Brussels with an agreed Withdrawal Agreement covering terms upon which the UK will leave the European Union. This must now be voted on by  both UK Houses of Parliament. The UK Parliament is currently debating the exit terms agreed as part of that deal. The likelihood is that the UK Parliament will reject the draft Withdrawal Agreement when it votes next week. Therefore given this situation it is particularly important for MPs to know what options they have as they assess whether there is a Plan B, whether the UK Government crashes out of the European Union with no deal or whether it is possible to reverse Brexit

Part of the consideration of the last option is knowing whether it is possible for an Article 50 notice to be unilaterally withdrawn by the UK Government prior to the end of the two year period thereby reversing Brexit. Thanks to a group of predominantly Scottish politicians who obtained a referral for a preliminary legal ruling on this issue to the European Court of Justice from the Inner House of the Court of Session the answer will be finally known . Only the European Court can opine definitively on this issue

Advocate General’s Opinion

On  4 December 2018, the Advocate General of the European Court of Justice (“AG”) handed down his Advisory Opinion to the Court. The AG, Campos Sánchez-Bordona opined that the U.K. could unilaterally revoke its Article 50 withdrawal notification, provided that such revocation is:-

– in line with the relevant national constitutional requirements (i.e., the U.K. Parliament must authorize the revocation);

– formally notified to the European Council; and

– effected before the expiry of the two-year period that begins when the intention to withdraw is notified (or if given within any agreed extensions of this period);

– done in accordance with the principles of good faith and sincere cooperation. There must be no abuse of the system which could happen if a Member State keeps triggering and then revoking an Article 50 notice multiple times

The Court is expected to confirm this view in a formal judgment before the U.K. House of Commons is due to vote on the Withdrawal Agreement next Tuesday 11 December.

What This Means For The UK

If the Court follows the AG then MPs could have the option of voting to revoke the UK’s Article 50 notice and the UK  remaining a full member of the European Union. This would allow MPs a further alternative to the rather stark choice being presented to them at the moment of either accepting the May deal, negotiating a new deal, or crashing out of the trading bloc with no deal on 29th March 2019

The UK Government points out that it is not Parliament that has to withdraw the Article 50 Notice but the Government. However if there is a clear majority of MPs in favour of such a motion to revoke the Article 50 notice it is highly unlikely that the Government will stand in their way  . This is especially so since for the first time in UK constitutional history the Government was just found in contempt of Parliament on 4th December for flagrantly disobeying an earlier parliamentary vote demanding the Government release a copy of their legal advice on the Withdrawal Agreement .

Even if an affirmative vote was carried it is likely that a second referendum on that issue would have to be held first before any steps were taken to withdraw the Article 50 Notice.

The question is whether there is enough time to hold such a Referendum prior to the 29 March deadline. Following a procedural vote on 4th December Parliament has now reserved to itself  greater powers to direct the Government where we go from here if the Government fails to win the vote on 11th December. If MPs were to mandate a Referendum immediately there could still be time to hold such a vote.

If, as is seen more likely, the Prime Minister is instructed to go back to Brussels to renegotiate the deal then there is likely to be a second vote in late January. If the Government were to lose again then it would be difficult to hold a Referendum in time before the March deadline. In that scenario there could need to be an agreement on an extension of Article 50 period which would require the consent of the EU27.  We live in interesting times.

It could be a very busy Christmas for both UK and EU diplomats !