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Brexit: UK can unilaterally revoke article 50, says ECJ
Brexit: May rules out revoking article 50 after ECJ ruling
(about 7 hours later)
The UK can unilaterally stop the Brexit process, the European court of justice has said in a ruling that will boost demands for a second EU referendum.
Theresa May has ruled out abandoning Brexit after the European court ruled that the UK could stop the article 50 process without seeking EU approval.
The court concluded that any EU member state can revoke an article 50 process without needing approval from every other member state, but only before its withdrawal comes into force.
The court in Luxembourg delighted remain campaigners by issuing an emergency ruling on Monday morning that under EU law, the UK was able to unilaterally halt the article 50 process – fuelling renewed calls for a second referendum.
“The United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU,” the ECJ said.
Speaking to MPs later as she fought to defend her decision to delay a Commons vote on her deal, the prime minister admitted the ECJ’s ruling meant she was able to revoke article 50 – a decision her government had bitterly opposed.
Theresa May in last-ditch bid to save Brexit deal despite growing mutiny
May was challenged by Liz Saville Roberts, a Plaid Cymru MP, who said the European court ruling meant “it is in the prime minister’s gift to personally take Brexit off the table”.
The emergency judgment came the day before the critical Commons vote on Theresa May’s Brexit deal and will be reviewed urgently by Scotland’s civil court in Edinburgh.
The prime minister indicated that was true but made clear she had no plans to do such a thing. It would be a short-term fix, she said, but would betray voters who won the 2016 referendum. “Revoking article 50 would mean going back on the vote of the referendum and remaining in the EU,” May said.
That process will kickstart what is expected to be a last-ditch legal battle by the UK government to delay the ruling’s implementation, which is likely to end in the supreme court. Legal sources said, however, the European court’s ruling was binding and could not be be overturned at the supreme court.
Scottish judges are to hold an emergency hearing in response to the ECJ ruling next week, chaired by Scotland’s most senior judge, Lord Carloway, the lord president, and two other judges, who now have to transpose it into domestic law.
While the decision means that MPs could in principle vote to revoke article 50 without the support of EU states, a second referendum would require an extension of the process – which would still be subject to veto.
Lawyers for the cross-party group of Scottish parliamentarians who took the case to Luxembourg are expected to argue it means the prime minister is lawfully able to cancel the article 50 process without needing new legislation.
The judges rejected arguments from both the UK government and the European commission that article 50, the two-year-long process that triggers a member state’s departure from the EU, could not be revoked unilaterally.
Andy Wightman, the Scottish Green party MSP who led the legal challenge, said it was a momentous ruling which now meant the UK could stay in the EU and keep all its existing benefits, including its rebate, its opt-outs and the pound.
A spokeswoman for the courtimplied a decision to abandon article 50 would need to be taken by a vote in the Commons. Any revocation “must be decided following a democratic process in accordance with national constitutional requirements”, she said.
“MPs now know that stopping Brexit altogether is an option open to them before the end of the article 50 period,” he said.
The prime minister resigns after a humiliating defeat. Many MPs believe she will have to go if she loses by more than 100 votes. An interim prime minister would have to be chosen while the Tory party plans a leadership contest.
May begs Michel Barnier, the European Union’s chief Brexit negotiator, left, to go the extra mile and reopen the talks. She asks for concessions over the Irish backstop, and then puts whatever she can secure to a second vote in the Commons.
Plenty of Conservative and Labour MPs would be happy to see a soft-Brexit, Norway-style solution that keeps Britain in the single market, as suggested by Amber Rudd, the work and pensions secretary. Although she has previously rubbished the idea, May could do a U-turn and try to sell it as a compromise to avoid the disaster of no deal.
With her deal ditched, and if “no deal” is also ruled out by parliament, May’s least worst option could be to go back to the people. Many Tory MPs are pushing her to do so. If Labour officially backs the idea, a second referendum –as suggested by Keir Starmer, the shadow Brexit secretary – could happen.
If parliament cannot agree on what kind of exit from the European Union it wants, and if there is no majority for a second referendum, Britain hurtles towards a no-deal departure on 29 March 2019. A hardcore group of Brexiters led by Boris Johnson and Jacob Rees-Mogg would rather accept trading with Europe on basic World Trade Organisation terms than May’s deal or any form of soft Brexit.
If there is no agreement on anything, and “no deal” has been blocked off as an option by parliament, the other choice available is no Brexit. May or whoever is in charge could form a cross-party government of national unity, revoke Article 50 and call the whole thing off.
Monday’s decision upheld a finding by the ECJ advocate general, Manuel Campos Sánchez-Bordona, who said last week that article 50 of the Lisbon treaty 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”.
He rejected the contention that the mechanism for a member state to quit the trade bloc could only be reversed following a unanimous decision of the European council.
Dame Margaret Beckett, one of the most prominent Labour supporters of the People’s Vote campaign for a second referendum, said the ruling focused the Brexit debate on two options: accepting May’s deal or abandoning Brexit.
“We now all know beyond any doubt that we can stay in the EU – it’s not too late,” the MP said. “In the next few days we can take Theresa May’s deal off the table too. Other Brexit options do not work any better than that of the prime minister because there is no deal that can keep all the promises made two years ago, or is better than the deal we’ve got in the EU.”
The environment secretary, Michael Gove, played down the significance of the decision. He told BBC Radio 4’s Today programme: “We don’t want to stay in the European Union. We voted very clearly – 17.4 million people sent a clear message that they wanted to leave the European Union. And that also means leaving the jurisdiction of the European court of justice.
“So this case is all very well, but it doesn’t alter either the referendum vote or the clear intention of the government to make sure that we leave on 29 March.”
The shadow attorney general, Shami Chakrabarti, told Today that Labour’s position had not changed as a result of the judgment “because it isn’t a surprise”.
Until now, EU treaties had been silent on how the article 50 process could be halted. That was challenged a year ago by a cross-party group of eight pro-remain Scottish MSPs, MPs and MEPs funded by donations to a London-based legal campaign, the Good Law Project, run by the QC Jolyon Maugham.
The Scottish National party MEP Alyn Smith, one of those who brought the case, described the ruling as “dynamite”.
“The timing is sublime,” he said. “As colleagues in the House of Commons consider Mrs May’s disastrous deal we now have a roadmap out of this Brexit shambles. A bright light has switched on above an ‘Exit’ sign.”
Andy Wightman, the Scottish Green party MSP who led the legal challenge, tweeted that it was a “clear and unambiguous” ruling “which upholds our arguments. Having read submissions and heard evidence, there really was no other legal option.”
FULL CJEU #article50 ruling now published. Clear & unambiguous. Upholds our arguments. Having read submissions & heard evidence, there really was no other legal option. https://t.co/jDosCgCgj2 pic.twitter.com/bE7AcvoTQd
FULL CJEU #article50 ruling now published. Clear & unambiguous. Upholds our arguments. Having read submissions & heard evidence, there really was no other legal option. https://t.co/jDosCgCgj2 pic.twitter.com/bE7AcvoTQd
The case was debated in 14 separate hearings and appeals at the court of session, which is Scotland’s civil court, the supreme court in London and the ECJ.
The pro-Brexit environment secretary, Michael Gove, played down the significance of the ECJ decision, which was announced just before he was interviewed on BBC Radio 4’s Today programme.
It was thrown out twice by Scottish judges who backed the UK government’s claims that the issue was hypothetical since May had no intention of revoking article 50, only for their decisions to be overturned on appeal.
“We voted very clearly – 17.4 million people sent a clear message that they wanted to leave the European Union. And that also means leaving the jurisdiction of the European court of justice,” he said.
The European court said last week that Sánchez-Bordona disagreed. He believed “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”.
“So this case is all very well, but it doesn’t alter either the referendum vote or the clear intention of the government to make sure that we leave on 29 March.”
After fast-tracking its review, the ECJ said it should remain the sovereign right of a member state to cancel its withdrawal application before it came into force, in the same way it had a right to start the withdrawal process.
While the UK could abandon Brexit before 29 March, the date on which its withdrawal from the EU under article 50 takes effect, staging a second referendum would require the EU’s agreement to extend article 50 beyond its normal two-year time limit.
In another boost to remain campaigners, the court added that if the UK did abandon Brexit, it should have no effect on the existing terms of its membership.
Rob Murray, a partner at the law firm Mishcon de Reya, which represented Gina Miller, the activist who won a supreme court ruling in 2016 that article 50 had to be authorised by parliament, said new legislation would be needed.
Aidan O’Neill QC, the lawyer who led the case for the parliamentarians, said that finding would preserve the UK’s existing opt-outs on the social chapter and the Schengen internal security treaty, its greater flexibility on VAT rules, its rebate and its decision not to join the euro.
After reading the European court ruling, Murray said: “Critically, as clarified by the Miller decision, an act of parliament would be necessary to reverse the notification of intention to withdraw.”
The court said: “The revocation by a member state of the notification of its intention to withdraw reflects a sovereign decision to retain its status as a member state of the European Union, a status which is neither suspended nor altered by that notification.”
Jolyon Maugham QC, the founder of the London-based Good Law Project, whose supporters helped fund the legal challenge, said he believed this was not necessary. All that was required, he said, was a Commons vote ordering the prime minister to stop Brexit.
The judges said the European commission had no right to block a decision by the UK to abandon the Brexit process, since that amounted to the EU forcing a member state to leave against its will.
“We’ll obviously need to discuss it internally. But I expect we’ll say that there’s no need for fresh legislation. Parliament can direct the PM to revoke and that’ll be that. It may even be that the government doesn’t disagree,” Maugham said.
Tom Brake, an English Lib Dem MP who supported the legal action with the Labour MP Chris Leslie at a later stage, said the ruling brought the UK much closer to a second referendum to chose between May’s deal and remain.
He cited reports from Sky News that government ministers also privately believed no new legislation is required. However, the case is expected to be vigorously contested by the UK government, which could appeal against it to the UK supreme court in an effort to delay a final ruling.
“It is clear any Brexit will make people poorer and reduce the UK’s standing in the world. MPs should not only vote down Theresa May’s deal, but back a people’s vote with the option to remain in the EU,” he said
The ECJ judgment, which came only two weeks after it held an emergency hearing on the issue, had itself been expedited to coincide with the crucial vote on May’s Brexit deal in the Commons tomorrow.
That vote has now been postponed as May fights to save the deal and her government after more than 100 Tory MPs, including numerous loyalist, pro-remain backbenchers, threatened to vote the deal down.
Maugham and other members of his group believe the ECJ ruling raises doubts about the supreme court’s ruling in Miller in 2016 because it was partly based on the assumption that article 50 could not be unilaterally revoked.
Miller’s legal team and the UK government agreed to that position because it was legally simpler to do so, Maugham said, and increased the constitutional role of parliament. The European court has now said that was wrong.
