Following the Advocate General’s (AG) opinion last week, the European Court of Justice (ECJ) has now opined on the question posed by a Scottish court on whether the Article 50 Notice given by the Government to terminate the UK’s membership of the EU may be withdrawn by the UK unilaterally. The case (Wightman and Others v Secretary of State for Exiting the European Union) was brought by a group of MEPs, MSPs and MPs.

The Government submitted that the court should not entertain the claim because it raised matters that were merely hypothetical. That argument was based on the stance that the UK Government retains no intention of revoking the Notice. The Scottish court at first instance agreed and dismissed the application. The appeal court reversed that and, since this is a matter of Treaty interpretation, referred the question to the ECJ under Art 267 TFEU. The Government sought to appeal to the Supreme Court (SC) but the appeal itself was inadmissible, the SC lacking jurisdiction over the reference. The Government’s position publicly stated in the Miller case, in which Edwin Coe acted, is that the Article 50 Notice, once given is irrevocable.

The ECJ has dealt with the matter with highly unusual speed. The AG gave his view last week. The ECJ usually follows that view but by no means always. The AG rejected the Government’s stance:

  1. The issue is not hypothetical for the claimants who are a mixture of MPs, MEPs and MSPs.
  2. The giver of the Art 50 Notice exercises a voluntary sovereign power in doing so and thus exercises that power to withdraw the notice.
  3. There’s nothing in Article 50 to suggest otherwise.
  4. It’s a matter of international law under the Vienna Convention on the Law of Treaties that a state may cease its withdrawal from a Treaty.

Now the ECJ has followed the views of the AG, what does it mean practically in law, if not politics? The decision reinforces UK Parliamentary sovereignty in giving MPs control over the process, whether it be approval of the deal on the table, an extension of the Article 50 period or withdrawal of the Article 50 Notice. Withdrawal is the easier of the two Article 50 options in law. Withdrawal of the Notice will likely still require statutory authority from Parliament, as did the giving of the Notice, but once permission is given to withdraw by Parliament then the Prime Minister can simply withdraw the Notice and we are back to square one and that would be the end of Brexit. More likely is the extension of the period under Article 50, particularly if there were to be a second referendum. Article 50 provides for that alternative but only with the unanimous consent of the European Council. So there are now three Article 50 routes in law, leave in accordance with the notice served, extend the period or, now, simply withdraw the notice.

Of course this is a statement of the law but how the politics will play out remains to be seen.

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