Author: Jon Stone
The ruling matches legal advice given to the court last week by its advocate general, who said as a sovereign country Britain could reverse its decision even at this late stage.
The legal decision is significant because means Britain could prevent a no-deal Brexit from happening if it wanted, even if Theresa May‘s deal is voted down by MPs next week.
In their judgment released on Monday morning the panel of judges said it would be “inconsistent with the EU treaties’ purpose of creating an ever closer union among the peoples of Europe to force the withdrawal of a member state” against its wishes.
The court went even further than its advocate general and said the UK could even revoke Article 50 if the period had been extended. This is significant because it means time could be bought to hold a referendum or general election whose result could see Brexit cancelled.
“When a member state has notified the European Council of its intention to withdraw from the European Union, as the UK has done, the Member States is free to revoke unilaterally that notification,” the Luxembourg court said.
“That possibility exists for as long as a withdrawal agreement concluded between the EU and that member state has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and an possible extension, has not expired.”
The court said any revocation must be decided “following a democratic process in accordance with national constitutional requirements”. In the UK, the Supreme Court ruled that a vote of parliament was required to trigger Article 50 in the first place: this condition may apply to revocation.
The UK’s government lawyers had argued at the ECJ that whether Article 50 could be revoked was a hypothetical question and should not be ruled on. The Government had been using the threat of “uncertainty” to convince MPs to vote for Theresa May’s deal, warning that an accidental no-deal could occur if it was rejected by the Commons.
The European Council and European Commission’s lawyers were against giving member states the power to revoke Article 50 unilaterally and said the consent of other member states should be required. They argued this on the basis that an extension of the period requires the consent of member states, and said the power could potentially abused by a malign government hoping to cause trouble.
MPs are set to vote on Tuesday on whether to accept or reject the Government’s deal, with the current parliamentary arithmetic indicating a resounding defeat for the government.
The ruling is one of the fastest ever made by the court, which normally takes a matter of months to come to a conclusion, even when a case is fast-tracked. The legal question was raised by campaigners through the Scottish courts, which ultimately referred the case to the ECJ.
It was previously legally disputed as to whether Article 50 could be unilaterally revoked, as the wording of the Lisbon Treaty clause is ambiguous.
Stopping Article 50 can prevent the UK leaving but once it has left it would have to rejoin under Article 49 – using the normal process of a country applying for membership.
Dame Margaret Beckett, a leading supporter of the People’s Vote campaign for a second referendum, said the ruling was “confirmation that it is still up to us to decide whether we want to keep the existing deal we’ve got in the EU rather than accept a bad deal negotiated by the Government”
She added: “What has happened in the last week is that any prospect of no deal has been removed by amendments allowing Parliament to take control, while we now all know beyond any doubt that we can stay in the EU – it’s not too late.
“In the next few days we can take Theresa May’s deal off the table too.”
A UK Government spokesperson said: “We note the judgment from the CJEU but this does not change the government’s firm policy that we will not revoke Article 50. The British people gave a clear instruction to leave, and we are delivering on that instruction.”