UK is free to cancel Brexit unilaterally
The UK is free to revoke Brexit unilaterally if it wishes to the European Court of Justice has said today.
The decision confirms the opinion given by the court’s advocate general last week.
It says that if the UK decides, under its own national constitutional requirements (ie. such as a vote by parliament) that it wishes to revoke its triggering of article 50 (the EU’s exit clause) it may do so:
Before the withdrawal agreement enters into force (currently expected to be at midnight French time on March 29, 2019, if the deal negotiated by the UK and EU is ratified), or
If no agreement is concluded (the ‘no-deal’ scenario) until two years after article 50 was triggered (which is the same date).
The decision must be made ‘democratically’ and should be communicated clearly to the European Council in an unequivocal way, the court said.
The court said the decision reflects the fact that member states remain members after triggering article 50 until such a time they have left and should have the ‘sovereign’ right to retain their membership status if they wish.
The European Council and Commission had asked that the UK being able to reverse the decision should be subject to their unanimous approval. However the court said that a member state should not be forced to leave the EU against its will.
The importance of the case is that it opens up new options for the UK - for example it means that the choice is not simply between leaving with the deal that has been negotiated between the UK and EU, or no deal at all, or a revocation that could potentially have been subject to conditions such as losing various British opt-outs and advantages.
However some commentators say that from the EU position, it opens the floodgates to countries that might wish to undertake negotiations to see what deal they can obtain, knowing that they can still change their mind and stay.
The UK government had also attempted to block the case, which originated in the Scottish courts and was supported by the Good Law Project whose director, British barrister Jolyon Maugham, is one of the petitioners in the case along with some Scottish members of the parliaments of the UK, Scotland and Europe.
The decision was fast-tracked in what the court calls an ‘expedited procedure’, used for ‘exceptionally urgent’ cases.
There’s not much more to be said about the largest defeat for a sitting government…