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Brexit and the MP's Legal Dilemma

Yesterday, Advocate General Campos Sanchez-Bordona (AG) delivered his Opinion in Case C621/18 Wightman and others v Secretary of State for Exiting the European Union, concerning the question of whether a formal notification to the European Council to withdraw from the European Union can be revoked by the member state giving the notice without the prior consent of the Council (or any other of the EU institutions) or prior agreement of EU member states (i.e. unilaterally).

The AG’s proposal that the Court of Justice of the European Union (CJEU) should, when it meets to decide the case, determine that unilateral revocation is permissible at any time before the withdrawal agreement is concluded (para. 89) is eclipsed in interest only by his clearly expressed view that members of the UK Parliament ought to have the legal question of the revocability of Article 50 uppermost in their minds on 11 December 2018 when Parliament meets to vote on whether to endorse the Brexit withdrawal agreement which was concluded in draft on 14 November 2018 and endorsed by the EU 27 on 25 November 2018.

At part four of the Opinion (paras. 32-57), the AG sets out seven reasons why, contrary to the position of the UK Government, he considers that the question of the revocability of Article 50 should be admissible under the preliminary reference procedure and not dismissed as being merely academic/hypothetical (para. 36). Among these reasons is the need to ensure that MPs are aware that revocation of Article 50 is a real option “...when casting their votes” (para. 43), specifically:

“...the answer to the question referred for a preliminary ruling will enable MPs to know whether there is a third way available to them, not only the alternatives open to them at present (rejection or approval of the withdrawal treaty and statement on the United Kingdom Government’s course of action in the absence of an agreement). That third way would enable Parliament to call upon the United Kingdom Government to revoke the notification of the intention to withdraw, so that the United Kingdom could remain party to the treaties establishing the European Union and an EU Member” (para. 45).

The AG’s carefully worded invitation to MPs opens up the possibility of yet another novel spectacle for observers of the ever-unfolding drama which is Brexit – who will have the chance to assess how well MPs are able to use delicate legal tools to achieve their desired political goals.

All along the UK Government has claimed that it has no intention of revoking its Article 50 notification. Is the prospect of the CJEU deciding the case along the lines of the AG’s Opinion sufficient to weaken its resolve in this regard? However much MPs are divided over the terms of the withdrawal agreement, is it likely that a Parliamentary majority could be mustered in favour of a decision to revoke Article 50, which, according to the AG, is one of the conditions which must be met before any revocation would have legal effect (para.144)? These and other difficult questions will confront those MPs prepared to navigate the AG’s Opinion, and the CJEU judgement which will be delivered in due course. At the end of their deliberations MPs may well conclude that the emerging jurisprudence on Article 50 will be of enormous benefit to future generations but will offer them little by way of a practical guide through the Brexit dilemma.

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