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UK can cancel Brexit, top EU legal adviser says

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As senior Tory ministers face contempt vote over refusal to publish ‘Chequers deal’ legal advice

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The UK should be able to cancel its withdrawal from the EU without the consent of the other member states, a top European law officer has said.

The Court of Justice of the European Union (CJEU) has been considering whether or not Article 50 of the Lisbon Treaty, the one that sets the Brexit wheels in motion, can be revoked. The petitioners in the case — six Scottish MPs, MEPs and MSPs, along with Devereux Chambers‘ Jolyon Maugham QC — argue the case will help clarify the realistic options for MPs who will vote on Theresa May’s ‘Chequers deal’ a week today.

The legal opinion, drafted by the CJEU’s advocate general, Manuel Campos Sanchez-Bordona, argues that the UK’s withdrawal “may be revoked at any time” during the negotiating period, provided it is done in good faith.

In a statement this morning, Maugham QC said the advocate general’s formal recommendation, which is not binding on the CJEU, “puts the decision about our [UK] future back into our hands of our own elected representatives — where it belongs”. The tax specialist, who has spearheaded a number of Brexit-related challenges in the courts, continued:

“On this critical issue I’m sure MPs will now search their consciences and act in the best interests of the country.”

A whopping 27 EU judges heard the case, referred to the CJEU by Scotland’s Court of Session, in Luxembourg last week. A full judgment isn’t expected till next year.

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In a separate statement, the ECJ said: “In answer to the question from the Scottish court, the advocate general proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the member state’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.”

The advocate general’s opinion follows the news that MPs had submitted an emergency motion of contempt in response to the government’s refusal to publish the full Brexit legal advice.

The motion, which will be debated and voted on today, calls on MPs to find “ministers in contempt for their failure to comply” and is signed by the likes of shadow Brexit secretary, Keir Starmer and the DUP’s Westminster leader, Nigel Dodds. Labour has hinted it would look to hold senior Tory ministers, which could include the attorney general, Geoffrey Cox, in contempt and seek their suspension from the Commons, the Guardian reports.

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