In an expedited decision published this morning the European Court of Justice has confirmed that any member state who has issued an Article 50 notice – which is the what Prime Minister Theresa May did to start off the withdrawal proceedings – may then decide unilaterally to reverse that decision.
The court says that there is no need to refer to the other 27 member states for their approval.
The case was heard by 27 judges of the court in November and the Advocate General Campos Sanchez-Bordona gave an indication last week that the judgement would be favourable, although his voice was not necessarily binding on the other judges.
The Advocate General’s judgement is long but includes this as to why it was important to issue the decision today ahead of tomorrow’s vote at Westminster :
“As I will set out below, notwithstanding the importance of the question raised both in terms of jurisprudence and for the future, its practical consequences are undeniable, as is its bearing on the main proceedings. If the Court accepts that the notification of the intention to withdraw may be revoked unilaterally, the United Kingdom could communicate such revocation to the European Council, and thereby remain a member of the European Union. As the United Kingdom Parliament has to give its final approval, both if a withdrawal agreement is reached and in the absence of that agreement, several members of that parliament consider that if the notice of the intention to withdraw were revocable, this would open a third way, namely remaining in the European Union in the face of an unsatisfactory Brexit. The referring court appears to adopt that position, reasoning that the Court’s answer will have the effect of clarifying the precise options open to members of the United Kingdom Parliament when casting their votes.”
The case was brought by Scottish politicians Andy Wightman Lothians MSP, Joanna Cherry QC MP for Edinburgh South West, Alyn Smith MEP, Ross Greer MSP, Catherine Stihler MEP David Martin MEP and Jolyon Maugham of the Good Law Project.
Commenting on the ruling by the European Court of Justice Constitutional Relations Secretary Michael Russell said: “This is a hugely important decision that provides clarity at an essential point in the UK’s decision making over its future relationship with the EU.
“People in Scotland overwhelmingly voted to remain in the EU and that continues to be the best option for Scotland and the UK as a whole.
“This judgment exposes as false the idea that the only choice is between bad deal negotiated by the UK Government or the disaster of no deal.
“We now know, thanks to the efforts of Scotland’s parliamentarians, that remaining in the EU is still on the table.”
Joanna Cherry tweeted : “A huge victory for Scottish parliamentarians and Scottish courts that Article 50 can be unilaterally revoked.”
A huge victory for #Scottish parliamentarians & #Scottish courts. #Art50 can be unilaterally revoked. Thanks frm me @AlynSmith @andywightman @Ross_Greer @C_Stihler_MEP @davidmartinmep @JolyonMaugham to all who supported us #Brexit #ScottishCase #PeoplesVote https://t.co/Q1C4XQAajL
— Joanna Cherry QC MP (@joannaccherry) December 10, 2018
Andy Wightman, Green MSP for Lothian tweeted : FULL CJEU #article50 ruling now published. Clear & unambiguous. Upholds our arguments. Having read submissions & heard evidence, there really was no other legal option.”
The Good Law Project issued this statement :
“The tiny Good Law project and six brave Scottish Parliamentarians have taken on the Government, the 27 other member States and the Commission – and won. This is the biggest upset since the First Book of Samuel and arguably the most important case in modern domestic legal history.
The 2016 Referendum – during which both Leave and the regulator broke the law – would shame a banana republic. And no one voted for a deal that cuts our freedoms and leaves us worse off with less control. But all the courts can do is open the door to Remaining. It is up to MPs to remember what they came into politics for. And find the moral courage to put the country’s interests before private ambition.”