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Brexit case that ‘could decide the fate of the nation’ heard by 27 judges in Luxembourg

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Opinion due on 4 December

Image credit: Twitter – @EUCourtPress

As support for a second referendum on Brexit gathers momentum, a crowdfunded case on whether or not Article 50 of the Lisbon Treaty, the one that triggers Brexit, can be revoked, has suddenly taken on greater importance.

The petitioners in the case, which was heard by the Court of Justice of the European Union (CJEU) yesterday before a whopping 27 judges, argue that the case will clarify what are the realistic options for MPs who will vote on Theresa May’s ‘Chequers Deal’ on 11 December.

If the judges decide that Article 50 can be revoked and that if the UK were to do so it would be no worse off than before, then Brexit will have been just a “bad dream”, argues Jolyon Maugham QC, the Devereux Chambers barrister who has spearheaded a number of Brexit-related challenges in the courts including the revocation case. “It is no exaggeration to say that this is a case that could decide the fate of the nation. It’s not too late to wake up from the nightmare,” Maugham wrote in The Guardian.

Though it is unlikely that the court will give its judgment before the MPs vote in a few weeks (Maugham anticipates a decision “before Christmas”), the court announced this morning that one of the court’s legal officers, the Advocate-General, is due to give their opinion on 4 December, seven days before the fateful 11 December vote. These opinions, in accordance with CJEU procedures, are published before a judgment and are often an indication of the way the court is going to decide.

The UK government’s position throughout the rather tortuous progress of this case (which originated in Scotland) is that this latest Article 50 case is politically motivated and dealing in purely hypothetical questions because revoking Article 50 is “not going to happen because it is not government policy” as May put it in the House of Commons earlier this week.

The case has been brought by a group of MPs, Scottish MPs and MEPs and is supported by the Good Law Project, the organisation run by Maugham. The Good Law Project is urging the public to use the revocation case as a means of persuading their MPs that remaining in the EU is a viable option for the UK.

The revocation case is by no means the only Brexit challenge in the courts at the moment. A High Court case which focuses on the official Vote Leave campaign and whether breaches of election rules relating to the campaign’s funding means the referendum is null and void is due to be heard on 7 December.

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20 Comments

Anonymous

VOTE LEAVE

TAKE BACK CONTROL

GIRFUY

Anonymous

Pleb.

Anonymous

LLL

Awkward

What if the ECJ says ‘no, Article 50 is not revocable?’

Jolyon Maugham is a moron.

Anonymous

Then we’re no worse off than we currently are, but at least have certainty for the MPs voting

Eisenhower's ghost

It’ll end in war. Mark my words.

Just Anonymous

It obviously can’t be unilaterally revoked.

An anonymous commentator explained why on a previous article.

If it could, then upon revoking it, we could instantly trigger article 50 again – and thereby use this method to extend negotiations indefinitely.

If there is a convincing response to this point, then I can’t think of it.

So why people are wasting time on this, I have no idea.

Anonymous

Well you only have to wait until 4th to see if the Advocate General agrees with you Just Anonymous.

Anonymouse

And presumably subsequently revoke again – and repeat

Anonymous

1. I’ve yet to see a convincing argument on this thread as to why it can’t be unilaterally revoked.

2. If it can’t be revoked, are you seriously telling me the EU doesn’t automatically extend/agree to revoke in order to allow a summer/autumn second referendum?

The case is irrelevant in practical ongoing terms for the UK, but a useful academic exercise.

Just Anonymous

Ok, allow me to spell it out.

Article 50. 3 specifies that the following consequences apply once Article 50 is triggered:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

Thus, if unilateral revocation were possible, then a State could do (in substance) precisely what Article 50. 3 says it can’t do: unilaterally extend the negotiating period.

Combine that with the fact that there exists no express clause permitting unilateral revocation, and I think the matter is thus put beyond sensible argument.

Anonymous

Speculation is that we would get Advocate General’s opinion on the 4th and possible ECJ decision before the 11th. If so that is (1) ridiculously quick given usual turnaround on ECJ decisions (2) clearly very important information for MPs voting on May’s deal.

Observant Europa Ingenieuer

The 1969 UN Convention on the Law of Treaties allows multilateral revocation, but not unilateral revocation. The most likely outcome is that the ECJ rules that the UK can revoke Article 50 only if all the other 27 member states agree.

To gain that agreement would require negotiation. The EU would demand of the UK a larger budget contribution, joining the Eurozone, following EU foreign policy, becoming part of the single EU armed forces and, in 2025, to being in the EU Federation. Other demands would be to conform to the Common Agricultural and Fisheries Policies and come under the Schengen Agreement.

Thus, another referendum (the third after 1975 and 2016) would be only able to offer accepting May’s deal or returning to (not remaining in) the EU, but on less favourable terms compared to now.

Cecil the Crevice-Dweller

I think that’s what’s called “being over a barrel, trousers down, no KY jelly”.

Anonymous

Who gives a fuck what the CJEU says?

If a member state can’t determine to leave the EU – which is the issue – why ever join it?

Absolute bollocks.

Anon

Any member state can jump through a window. But it’s more sensible to chuck a mattress out first.

Anonymous

The scale of poverty shamed Britain

We need a wealth tax and a supertax on city greed!

VOTE CORBYN, FOR THE MANY, NOT THE FEW!!!

Observant Europa Ingenieuer

The EU’s “cunning plan” to have monetary union to force political union has backfired.
Without the necessary monetary mechanisms that political union brings, the EU cannot manage the Euro properly. The Euro removed both exchange rates and interest rate controls from very different national economies. That has had 3 effects:

1. Reducing trade.
2. Increasing unemployment, due to reduced trade (up to 60% in Greece and Spain).
3. Converting economic shocks into political division.

Regarding the third, in 9 EU countries, including 4 EU founder states, nationalist parties have between 12.6% and 26% of the vote (Germany, France, The Netherlands, Italy, Sweden, Finland, Hungary, Denmark and Austria). Just as UKIP has the largest number of British MEPs and Front National French MEPs, it is possible that the EU Parliament in May 2019 elections will become more nationalist and that there could even be a Eurosceptic EU Commission President.

The 4 Visegrad countries oppose further federalisation, due to be completed by 2025. The next financial crisis will be before then and it will sweep away the Euro and the EU.

Anonymous

The EU sucks and is so uncool – so many spazzy little London bugmen get so agitated by Brexit but the nation as a whole is clear that we just need to get OUT.

Anonymous

With riots in France now against the globalist cabal, the EU isn’t likely to hold up much longer, the only real question being whether it will go out gracefully or baring its teeth like a wounded animal.

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