HM Insights

UK Parliament can unilaterally cancel 'Brexit' says Advocate General of CJEU

The Advocate General of the Court of Justice of the European Union (CJEU) has said that the UK should be able to unilaterally cancel its withdrawal from the EU.

The Opinion of AG Campos Sanchez-Bordona, delivered following last week's hearing before the full court of the CJEU, is that this position should be the case 'until such time as the withdrawal agreement is formally concluded'. You can read his full opinion here.

Though the Opinion is non-binding, the court tends to follow such opinions in most of its rulings. The CJEU will deliver its final ruling shortly.

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Pictured at the CJEU, from left: Jennifer Jack of Harper Macleod, Anneli Howard, Gerry Facenna QC and Morag Ross QC

The main arguments were about: (1) whether the reference was admissible and should be decided at all (the UK Government and, to a more limited extent, the EU Commission argued against admissibility, with the UK government arguing that it is hypothetical and merely theoretical, since there it is the 'firm policy' of Government that it will not revoke the notification of the intention to withdraw); (2) whether revocation can be unilateral or must be consensual (i.e. the UK and the EU 27 agreeing on revocation); and (3) what controls should be placed on the revocation process.

The Advocate General, opined that there is a genuine dispute, the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute. The Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU 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, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

In his statement, Mr Campos Sanchez-Bordona said that if a country decided to leave the EU, it should also have the power to change its mind during the two-year exit process specified in Article 50 of the EU treaty and it should be able to do so without needing the consent of the other 27 member states.

The case was referred to the CJEU after a Court of Session action was brought by petitioners, including members of the Scottish, UK and European Parliaments, in December 2017. Jennifer Jack, a Partner at Harper Macleod, is part of a team of leading Scottish and English lawyers, representing two Westminster MPs in this high profile case: Tim Brake, the Liberal Democrat spokesperson on Brexit and Chris Leslie, a prominent Labour backbencher. Along with John Halford of Bindmans LLP, London, she is instructing a top team of Counsel with expertise in Public and EU Law: Morag Ross QC of Axiom Advocates; Gerry Facenna QC and Anneli Howard, both from Monckton Chambers; and Stephen Donnelly of Arnot Manderson Advocates.

Commenting on the Advocate General’s recommendation, Tom Brake and Chris Leslie said: “We welcome the Opinion. The Court usually follows the Advocate General and we hope that it will do so in this important case. For political reasons, HMG has tried very hard to stop the Court giving a ruling on the important topic of revocability. We await the Court’s judgment with considerable interest, giving the timing of the current Parliamentary processes on Brexit."

Tom Brake added: “Whether it is on the Brexit legal advice or the revocability of Article 50, the Government have gone out of their way to try to hide key legal facts from Parliament. If, as we expect, the Court confirms the AG’s recommendation, then the British people will have the right to cancel Brexit and stay in the EU if they so choose in a People’s Vote. This is a fact the UK Government are trying to hide from the people.”

The UK Government contested the case, trying throughout to prevent the question from being referred to and answered by the CJEU. The Opinion comes as the UK Parliament begins five days of debate on the proposed 'Brexit' withdrawal agreement, which is due to go to a vote on Tuesday, 11 December.