UK Can Cancel Brexit, says EU Court

The UK can cancel Brexit without the permission of the other 27 EU members and without altering the terms of Britain’s membership, the European Court of Justice (ECJ) has ruled.

Following the ruling, Brexit secretary Steve Barclay said the UK would be leaving the EU on March 29th 2019, under the terms of the EU’s Article 50 process, and had “absolutely no intention” of overturning the 2016 Brexit vote. “The government’s firm and long-held policy is that we will not revoke the Article 50 notice,” he added.

The ECJ’s ruling follows Advocate General Campos Sanchez-Bordona’s previous advice on the legal process for reversing Article 50.

In a non-binding opinion, he said:

“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.”

This means that the right to revoke Article 50 would need to be used before the March 29th 2019 deadline for leaving the EU. National constitutional requirements in the UK mean that an Act of Parliament would also need to be passed to support the revocation. If these requirements were met and Article 50 were revoked, Britain would then continue in its status as an EU member state on the current terms.

Concerns about unilateral actions

The opinion delivered by AG Sanchez-Bordona contradicted arguments made by both the British government and EU institutions.

Remain campaigner Lord Kerr – who was involved in drafting Article 50 –noted that the ruling indicates that Britain could reverse its decision to leave the EU before next March with “no price to pay – political or financial.”

Lawyers from both the European Commission and European Council did however make known their opposition to permitting EU countries to unilaterally reverse a decision to leave the EU without consent from other Member States. They argued that such impunity leaves the exit clause vulnerable to abuse, with governments potentially using threats to withdraw as a way to negotiate better, individual deals.

The Advocate General’s opinion touched on these concerns, noting that revocation should only be acceptable if it “does not involve an abusive practice.”

Government remains “clear that Article 50 is not going to be revoked”

The ECJ’s ruling was welcomed by anti-Brexit campaigners, who see it as a significant legal boost to Britain’s chances of remaining in the EU.

Remain campaigner Jo Maugham QC had said the Advocate General’s non-binding opinion “puts the decision about our future back into the hands of our own representatives – where it belongs”

He added: “I’m sure MPs will now search their consciences and act in the best interests of their country.”

Advocates for Brexit meanwhile have criticised the ruling as an attempt to undermine the referendum vote of British citizens to leave the EU. Leave campaigners say that the legal potential for a unilateral reversal will weaken Britain’s bargaining power in negotiations with the EU, encouraging the EU to strike the worst deal possible so that Parliament moves to pass an Act ordering a revocation of Article 50.

The government however has remained firm in maintaining that it will not seek to reverse Brexit.

Expats lose bid for void referendum result

Meanwhile, a group of British expats have failed in a High Court bid to have the EU referendum result declared void. The UK in EU Challenge group argued at a hearing last week that breaches of spending limits by pro-Leave organisations meant the 2016 referendum was not a “free and fair vote.”

But Mr Justice Ouseley said he was refusing permission for a full judicial review on the grounds of delay and lack of merit.

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