Does Brexit Mean Brexit? EU Judges Could Play Pivotal Role

(Bloomberg) -- As U.K. Prime Minister Theresa May strives to get her Brexit deal through Parliament, lawsuits are piling up with the potential to change the course of the nation’s biggest constitutional crisis since the 1930s.

On Monday, the European Union’s General Court in Luxembourg rejected a Brexit challenge by 13 expats including Harry Shindler, a World War II British Army veteran. They argued that the EU’s decision to start Brexit negotiations was illegal because they were denied a voice in the U.K.’s 2016 referendum. Julien Fouchet, the French lawyer who brought the case, said he would appeal as soon as possible.

That will be followed on Nov. 27 by a hearing at the EU’s Court of Justice -- the bloc’s highest tribunal -- on potentially the most important Brexit case of all. The question being asked is crucial for the Britons who voted against Brexit and would like another referendum: Could the U.K. unilaterally revoke its intention to leave, and if not what must it do?

“The case is profoundly important,” said Jolyon Maugham, the pro-Remain lawyer spearheading the case in a group that includes some Scottish politicians. “If members of Parliament only have two choices to accept the deal or to leave without a deal, they’re likely to accept the deal, even if they don’t like it. If MPs have three choices, to accept the deal, to leave without a deal or to remain, then it seems to me they’re likely to remain.”

The U.K.’s Department for Exiting the EU lost a bid to derail the case last week, as the country’s Supreme Court refused to hear an appeal that could have prevented it going to the EU tribunal. The department insists the case was pointless because the government has no intention of revoking the so-called Article 50 letter, which set the clock ticking on the Brexit process in March 2017.

The issue is complicated because while Article 50 of the EU’s Lisbon Treaty tells member states how to start the process of leaving the bloc, it offers no help on what to do it they change their mind. A final ruling could come soon as next month.

Opinions on how the court will approach the case -- and its potential impact -- differ widely.

Does Brexit Mean Brexit? EU Judges Could Play Pivotal Role

David Edward, a retired Scottish lawyer who served as a judge at the EU’s top court until 2004, said even if a political consensus to step back from the precipice emerges, “the politics of the EU are subject to the law of the treaties” that underpin the bloc.

“I assure you that this is a serious and live legal question. That’s why the U.K. government was so keen that the reference to the ECJ should not be made. It’s crucial to the debate in the U.K. -- particularly as regards a second referendum -- to know whether there’s any way out before the axe falls.”

Gunnar Beck, a member of the pro-Brexit group Lawyers for Britain, called the lawsuit “a waste of resources,” saying the EU court “will not issue advisory opinions on general or hypothetical questions.”

For Beck, a German, it’s impossible for the EU tribunal to be an “impartial arbiter” between the EU and a former member state. “It’s not an impartial court, but it’s an imperial court.”

Jean-Claude Piris, the former head of the EU Council’s legal service, said he thinks judges should say that Article 50 is revocable and “that it is a question which is totally unilateral.”

But, politically, the judges may be tempted to say that the other 27 states should have to say “yes,” according to Piris. That would avoid a scenario where the U.K. would revoke the process and then ask to withdraw again at a later stage. “It’s an important case, a political case, a constitutional case,” he said.

Charles Grant, director and co-founder of the Centre for European Reform, said that the case “doesn’t really matter very much in the real world.” The EU wouldn’t stand in the way of backing the U.K. if it ended up deciding to stop Brexit and withdraw its Article 50 notification, he said.

Andrew Duff, a U.K. Liberal Democrat who served 15 years in the European Parliament, said the EU court “can and should say” that Article 50 can be revoked, but that he expects judges “to avoid studiously all hypotheticals, and to avoid setting criteria, terms and conditions on how a revocation should be made, and what should happen then.”

EU leaders at a special summit in Brussels on Sunday agreed to the divorce terms put forward by negotiators from both sides, but warned that there is no Plan B.

This unified view from the EU 27 “entrenched” the Article 50 process, said Duff. The EU Council “would only address a change in the Article 50 process if the U.K. government and Parliament were to together demonstrate a genuine and solid change of heart and mind about Brexit,” he said.

The U.K. government on Monday published its arguments made earlier to the Supreme Court. Among them is one that Maugham welcomed as clarifying his long-held view that the Parliament could end up directing the government on Article 50.

“To lawyers it’s always been clear that Parliament can direct the government to revoke Article 50,” Maugham said by phone. “But it ought now to be clear to all parliamentarians as well that the government has recognized that constitutional reality.”

Other Cases to Watch

  • Britain’s Supreme Court is expected to hand down a judgment in another Scottish case some time before Christmas. The country’s top judges are considering whether First Minister Nicola Sturgeon’s own attempt to control the withdrawal process is constitutional.
  • Donations made by pro-Brexit groups including Arron Banks’s Leave.EU will be investigated by police after the Electoral Commission said they may have "knowingly concealed" the true source of 8 million pounds ($10.3 million) of funds to the campaign.
  • U.K. High Court may soon rule on legal challenge to Theresa May’s alleged failure to act on evidence of illegal activity in referendum campaign.

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