„That ship has sailed...?” the UK should be able to change its mind about Brexit, according to the Advocate General
Advocate General Campos Sánchez-Bordona proposes that the European Court of Justice (ECJ) should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU. The ruling date has been set for December 10, just a day before the national Parliament’s vote on Prime Minister Theresa May’s much-maligned Brexit agreement. Regarding the issue, it seems that the United Kingdom isn't united at all at the moment...
Article 50 allows any EU member state to leave the bloc. It was invoked by the British government following the historic referendum on 23 June 2016, when roughly 52 percent of voters chose „leave” and 48 percent went „remain” – in Scotland and Northern Ireland, the majority of voters wanted to stay in the European Union, while the majority in England and Wales voted in favor of leaving. The UK triggered the article on 29 March 2017, starting a two-year countdown to secure a divorce deal before leaving the EU.
Since then, the whole situation has been turned upside down. A hard core of campaigners has pushed for a second referendum to overturn the result, including the former Labour Prime Minister (PM) Tony Blair. By contrast, Brexit supporters compared the EU to the sinking „Titanic” and Jeremy Corbyn, the aforementioned party’s leader today, – who, resisting the rerun of the vote, told the BBC in January „...that ship has sailed,” on UK remaining in EU – only a few months ago, said he did not know if he would vote „in” or „out” if given a second chance... At this point in time, the landmark 585-page agreement, which extracts Britain from the EU after more than four decades of membership, has proved politically toxic in Westminster: everyone from hardcore Brexiteers to pro-EU Brits finds aspects to dislike. Which clearly shows – keeping to the metaphor – that a lot of water has flowed under the bridge.
Old debate, new chapter
Meanwhile, a new chapter has opened in the Brexit debate: on last Tuesday (4 December), ECJ’s Advocate General advised the Court that the UK should be allowed to reverse procedure, in other words, Westminster could „stop the clock” on Brexit. The opinion, which isn’t binding, comes at a crucial moment for PM Theresa May, who’s trying to convince Parliament to back the deal she brought back from Brussels (until the vote which is due to be held on this Tuesday), but faces opposition on all sides.
Last year, pro-Remain lawyer Jolyon Maugham, along with a group of Scottish and English politicians asked a court in Scotland whether, having initiated an EU exit procedure under Article 50, a country can revoke the decision without other member states’ consent. Their hope was that, if the ECJ does rule in favor of unilateral revocation, it could pave the way for a „people's vote” on May’s Brexit deal with an option to remain. Finally, the court referred the question to the ECJ – which is already a frequent target of Brexit opponents – in October. The hearing came just two days after the UK agreed with the EU on the divorce terms at a special summit in Brussels, where European leaders warned British politicians they won’t get a better offer because there is no „Plan B”.
The Brexit ministry tried to „kill the case” and prevent it reaching the EU Court, but lost its 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. Lawyers for the Scottish and English politicians behind the case, argued that legal certainty needs to come before politics. „Undoubtedly in the current circumstances it is politically charged, but it is a question of European law,” said Gerry Facenna, who represented two English lawmakers. „Parliament has the power to decide and it is the parliament that needs to have certainty about the legal framework.”
The UK declared that the case is essentially pointless because the government has no intention of backing out of Brexit and the Court shouldn’t interfere, as Richard Keen, the UK’s lawyer underlined: „If the Court enters the field of parliamentary debate prematurely, then it does risk the accusation from one side or another that it is influencing the legislature or the executive in the determination of a highly charged political issue.” At the hearing of the case, he added that „In Greek myth, Pandora was given a large box on her wedding, which she was warned not to open... We respectfully plead that the Court should not open this box.” However, in line with the UK’s reference to Greek myth, Aidan O’Neill, the lawyer for the Scottish lawmakers, concluded by saying that „...what came out of Pandora’s box was not simply knowledge of the world’s evil, but ultimately hope, hope in and for a dangerous time.”
What Britain should know about...
The issue is so complicated because while Article 50 tells member states how to start the process of leaving the bloc, it offers no help on what to do it they change their mind. In a clear and detailed opinion, Sanchez-Bordona said that the UK (and any other member state that might follow in its footsteps) can revoke its Article 50 procedure within two years after it began and before a formal withdrawal treaty is signed. He pointed out that under Article 50, a country only declares its „intention,” not its decision, to exit. So ending the process, according to the advocate general, would be a manifestation of the withdrawing state’s sovereignty – a word especially dear to Brexiters. According to Sanchez-Bordona, a country could revoke an Article 50 notice „until such time as the withdrawal agreement is formally concluded.” He also highlighted that it was essential that Members of Parliament (MPs) knew they could stop the Brexit process if they wished.
The Advocate General 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 question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute,” he argued. He also highlighted that „...the relevant time to dispel doubts as to whether the notification of the intention to withdraw is revocable is before, not after, Brexit has occurred and the United Kingdom is inexorably immersed in its consequences.”
But the opinion is not in favour of an absolute right of unilateral revocation. There are two conditions in particular which need to be fulfilled. The first condition is that the revocation must be made in accordance with the member state’s constitutional arrangements. This mirrors the requirement under Article 50 that the initial decision to leave must be in accordance with the member state’s constitutional arrangements. This requirement probably means that the UK Parliament would need to pass new legislation, though there is an argument that the notification legislation may contain an implied power of revocation. If a new act is required, this would somehow have to be passed by Parliament before departure. In theory such urgent legislation is possible, but usually not in respect of a contentious matter.
The second condition is that the revocation must be in good faith. It should not be an attempt to stop and restart the clock so as to improve the departing member state’s negotiating position. Such an abuse of process would mean that the notification would be invalid. In other words, the EU can at least insist on the revocation being sincere even if they are obliged to accept an unilateral revocation. That requirement will be the most difficult for the UK to meet. As it stands there is a referendum result which provides a political mandate, and this mandate was supported by a majority of the MPs returned at the previous general election. Brexit is also the official policy of the government and it is supported by the official opposition. For revocation to be in good faith, however, would seem to mean a fundamental political shift, it would mean that Brexit was cancelled.
Opinion means only opinion?
While Sanchez-Bordona’s opinion is purely advisory, the Luxembourg-based Court usually follows such advice. „The meaning of Article 50 is an easily grasped issue on which everyone has an opinion, so this is not the sort of case in which the advocate general’s opinion is automatically followed,” said David Anderson, a lawyer at Brick Court Chambers in London. „It is the confidence with which the advocate general has expressed himself, rather than the likely persuasive effect of his opinion, that leads me to think the court is of essentially the same view,” said Anderson, who’s pleaded more than 150 cases at ECJ.
The ruling will be handled by the full court, which in this case means 25 judges. Having such a large number is very rare. University of Essex’s professor of EU law Steven Peers said this could make it harder to predict because judges aren’t used to having to confer with so many colleagues. Still, in this situation, „once a preponderant view has become evident, it may well be that the judgment will go through relatively easily,” said Anderson. The one point which the Court may want to refine could be the risk of a possible abuse of a right to revocation, said Peers. The ECJ could find „that the prospect of a member state revoking its Article 50 notification and then sending another notification to gain more negotiation time is too big a risk,” said Peers. „It will come down to whether they think the risk of unilateral revocation can be dealt with by a good faith rule, or whether they will just rule it out.”
ECJ – at the speed of light
As Koen Lenaerts, the Court’s president promised a rapid ruling at the beginning of the case, the ECJ has been „reacting, in judicial terms, at the speed of light,” according to one lawyer, to deliver a ruling on how the Brexit process could be reversed. It’s a far cry from the normal procedure at the Court, which is often criticized for taking too long. Even cases that have been given so-called fast-track status can get bogged down in procedural wrangling and translations.
The EU’s highest court sought to explain its lightning speed toward issuing Monday’s landmark ruling on whether the UK can change its mind about Brexit. In a rare step, the ECJ issued a series of tweets seeking to put the record straight after people suggested that delivering a judgment on Monday is politically motivated. As it has been mentioned before, it will come the day before Parliament votes on PM Theresa May’s highly criticized withdrawal agreement.
The so-called expedited procedure „allows a national court to request that its case be treated urgently in light of the special circumstances,” the EU tribunal added. „Using this procedure reduces the deadlines for the various stages and prioritizes treatment of the case within the court.” But it’s not the first time the Court has responded quickly in a crisis: back in 2001, judges ruled in just over two months in a case on foot and mouth disease; its average time to hand down a judgment in so-called urgent preliminary cases has been between 2.2 months to 2.9 months since 2013.
Remain campaigners have hailed the legal opinion, saying it greatly boosts their efforts to stop the process of exiting the EU. Chris Bryant, a Labour MP campaigning for a second EU referendum who became involved in the legal action in Luxembourg, said the advice meant “the terms of the Brexit debate have fundamentally shifted”. Bryant said it finally killed off claims by Theresa May that the UK could choose only between her widely criticised deal or no deal at all. „The real choice is now clear: a Brexit deal negotiated by the government, or staying in the EU. It is imperative that the final say on this is handed back to the public because only the people of the United Kingdom can sort this out,” he said.
But not everyone was happy about the advice to the EU’s top court. Nigel Farage, a Member of European Parliament who rigorously campaigned for Brexit, said it shows „every effort is being made on both sides of the (English) Channel to stop Brexit.” Downing Street officials downplayed the significance of the legal opinion and insisted the question remained hypothetical, since the UK government had no plans to reverse Brexit. “The position of the government has always been that it will not be revoked. That remains the case,” a spokesman said. “You should be careful on what’s happened today. It’s an opinion from the advocate general; it’s not a final verdict of the court.” UK government sources also believe the opinion strengthens May’s hand. One source said that if the European court’s position increased the chances that Brexit could be stopped, the pro-remain block would be under even greater pressure not to sabotage the PM’s deal in this week’s crucial Commons vote.
There are still three days before the Brexit summit, and officials in Brussels know a lot can happen before then. That’s why they haven’t made firm plans about Thursday’s discussion. On signing an agreement with the British PM last month, EU officials – as Theresa May as well – described the draft withdrawal treaty and accompanying political declaration on the future relationship as „the deal – the only deal possible”. Despite of these facts, others – like former Italian PM, Romano Prodi and former British Foreign Minister Boris Johnson – suggested it would still be possible to find a negotiated settlement in the increasingly likely event May suffers a heavy defeat in the Commons. „What people want to hear now is not stuff about leadership elections and personalities, what they want to hear is that there a plan to get out of this mess,” leading Brexit campaigner Johnson stated, who also feels deep sense of personal responsibility „for Brexit, and for everything that has happened.”
Difficult relationship – Europe ‘à la carte’?
It might seem that the EU would welcome the UK back with open arms if Brexit were canceled. „The door remains open,” European Commission President Jean-Claude Juncker and European Council President Donald Tusk have often said. European Commission Vice President Frans Timmermans said „much has changed” since the UK voted to leave the EU in 2016. „As far as I’m concerned, the UK is always more than welcome to stay,” he stated at the European Socialists’ congress in Lisbon on Saturday. The leaders of Germany and France, the EU’s most influential countries, have also expressed hope that the UK would stay. But whether it’s really desirable for the EU to keep the UK within the fold is another matter.
Even before Brexit was on the agenda, the UK wasn’t exactly popular in the bloc. According to a 2017 paper by Marco Fantini and Klaas Staal, the UK has been the country that has garnered the least support from other member states in the European Council, which means its policy preferences have been the least aligned with those of other member states. In recent years, it’s been by far the most outvoted country in the Council.
Even though the level of agreement in the European Council has been generally high and the UK has only dissented in about every eighth case, it voted against the majority most frequently on budgets, foreign and security policy and international development, which are especially important areas for the EU today. What is more, the UK is the EU member state with the most opt-outs from EU agreements. It refuses to think about joining the euro or the common border area, and it’s haggled relentlessly over every EU project that required giving up even a small part of its sovereignty.
If the ECJ endorses the Advocate General’s views on Monday, it could kickstart a fresh legal battle between UK government lawyers and remain campaigners that is expected to end in the Supreme Court early next year. The opinion means Britain has a wonderful opportunity to be readmitted to the Block – but not necessarily in their hearts...
For the list of references, click HERE.
Petra Ágnes Kanyuk, PhD Student, University of Debrecen, Faculty of Law
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