Brexit Opponents Get EU Court Boost as May Said to Pull Vote
A worker adjusts a European Union (EU) flag as it stands next to a Union flag, also known as a Union Jack, right, inside the European Commission building in Brussels, Belgium. (Photographer: Dario Pignatelli/Bloomberg)

Brexit Opponents Get EU Court Boost as May Said to Pull Vote

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The U.K. can unilaterally reverse Brexit, the European Union’s top court said in a landmark ruling ahead of Prime Minister Theresa May’s decision to pull a potentially humiliating Parliament vote on her controversial withdrawal deal with Brussels.

The EU Court of Justice in Luxembourg boosted the hopes of those campaigning for an end to the divorce, saying that Britain is free to revoke its so-called Article 50 notice any time before it’s due to leave the bloc on March 29.

A few hours later, May opted to postpone Tuesday’s planned vote amid concerns a huge defeat could plunge the U.K. into unprecedented political chaos, according to people familiar with the situation.

The EU court’s decision “puts the power to decide the U.K.’s future back where it should be: in the hands of our MPs,” said pro-Remain lawyer Jolyon Maugham, who spearheaded the case. “I hope they now find the moral courage to make the right decision.”

The ruling that Article 50 can be revoked will be seized on by Remainers, who must now decide whether to push an amendment to that effect. At the very least, they can now argue with more force that staying in the EU should be included in a second referendum to end the gridlock if May’s deal is eventually blocked in a rescheduled Parliament vote.


On the flipside, there are clear implications for Brexiteers, too. Ever since lawmakers moved to give themselves more power over the Brexit endgame in a vote last week, concern has been growing among euroskeptics that Parliament will seek a softer withdrawal or even attempt to stop Brexit entirely. On that basis, it could make sense to back May’s deal -- which they dislike because it retains closer ties to the bloc than they want -- rather than risk no Brexit at all.

Brexit Opponents Get EU Court Boost as May Said to Pull Vote

May’s legal team tried to kill the case, saying it was frivolous because the government had no intention of halting Brexit.

“This case is all very well but it doesn’t alter either the referendum vote or the very clear intention of the government to make sure that we leave on March 29,” Environment Secretary Michael Gove said in a BBC radio interview just after the ruling. “We don’t want to stay in the EU.”

On Monday, another group lost a last-ditch attempt in a London court to challenge the June 2016 Brexit vote and bring a judicial lawsuit against May.

Constitutional Crisis

As Britain’s constitutional crisis played out at home, the EU judges were asked by a Scottish court to weigh in on a key legal question: Could the U.K. unilaterally revoke its “Article 50” letter that started the clock ticking on Brexit?

“The revocation by a member state of the notification of its intention to withdraw reflects a sovereign decision to retain its status as a member state of the EU, a status which is neither suspended nor altered by that notification,” the 25-judge panel said. Their decision can’t be appealed.

The issue has been legally tricky 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 if they change their mind.

The ruling is in line with an advisory opinion from an advocate general of the court on Dec. 4 who suggested that the whole process can be reversed. Lawyers said today’s ruling is an even bigger boon for opponents of Brexit.


The advocate general said that a revocation “had to be done in line with the principles of good faith and sincere cooperation,” said Alec Burnside, a partner at law firm Dechert. “The court has not included those caveats.” Instead, it “simply says that the revocation has to be ‘unequivocal and unconditional.’”

The withdrawal of the Article 50 notification needs to be definitive and to follow from a decision taken in accordance with the constitutional requirements of the U.K. and “this raises an issue of timing as there is almost certainly insufficient time for the U.K. to run a referendum and pass the legislation needed to withdraw notification before March,” said Ronan McCrea, a professor of constitutional and European law at University College London.

The U.K. may end up still having to get the other 27 EU nations’ permission “to extend the Article 50 period in order to hold a referendum so, in effect, at this stage the right of withdrawal may not be entirely unilateral,” he said.

Delivering on the Scottish court’s request for urgency, the EU ruling was issued just over two months after the case arrived at the bloc’s top tribunal.

The case is: C-621/18, Wightman and Others.

©2018 Bloomberg L.P.

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