Today the European Court of Justice has confirmed that the UK can unilaterally revoke its Article 50 notice. It’s a huge and game-changing moment, clarifying definitively that the British people have real choices about Brexit – and that we can still determine our own destiny.
The timing of this judgment is especially valuable for Members of Parliament seeking the right path for the UK amidst the present political turbulence. It is now crystal clear we have real options beyond the Prime Minister’s tactical ‘my deal or no deal’ fiction.
If we decide as a country to revoke the Article 50 notification, we can maintain the privileges of our existing membership status. We would retain the (very valuable) budget rebate; not have to join the Schengen arrangement (for open borders) or the Euro; and our opt-outs and vetoes would remain in place. If the British people make this choice, the whole sorry saga of Brexit and the Article 50 notice can be wiped off the slate.
Together with our parliamentary colleague Joanna Cherry, we took part in this case in Scotland, resisted the government’s challenge in the Supreme Court and appeared before the Court of Justice. We became personally involved because it was important that as MPs from different political parties, active in the Brexit debate, the Court had a chance to hear our submissions and see that this ‘right to revoke’ matters to our colleagues. We are delighted that our arguments have been upheld in Scotland, the Supreme Court and in Luxembourg.
This case had to be brought. The EU’s Commission and Council argued that a member state could only revoke with the unanimous consent of the 27 member states. Without this judgment, which binds all Member States and the EU institutions, a unilateral revocation (which would probably have been legally challenged) would have created legal uncertainty that some in Parliament would have used as an excuse to restrict the choices of the British people. To have a real, credible unilateral revocation option, the decision was essential. That option is critically relevant if the withdrawal deal were to fail and if either the only other course is an economically, administratively and politically catastrophic ‘no deal’ or there is constitutional deadlock.
We suggested, and the court agreed, that a state must act in accordance with its constitutional requirements when revoking. This is critical in a democracy. Parliament would have to decide the proper democratic and constitutional foundation for a revocation.
We think that the option to stay as a member of the EU, on our current terms, is a credible and compelling alternative, to be considered in the national interest, right through Parliament’s voting on Brexit. For example, Parliament could act to revoke, if necessary in the national interest, if the Brexit political process breaks down or if it is sufficiently clear, whether through a People’s Vote or otherwise, that the British people no longer want Brexit (with all the next 5-10 years of ongoing negotiations, uncertainty and the likely outcomes that would follow). Brexit is not inevitable; the UK needs to choose democratically what is best for it. This judgment changes the paradigms of that process.
Throughout this remarkable case, we have been supported by a team of Scotland and England’s very best public and EU law lawyers: Jennifer Jack of Harper Macleod LLP and Morag Ross QC of Axiom Advocates, both based in Edinburgh, and in London, John Halford of Bindmans LLP, Gerry Facenna QC and Anneli Howard of Monckton Chambers, along with Stephen Donnelly of Essex Court Chambers/Arnot Manderson Advocates.
Today we have won clarity that the UK has a unilateral right to reverse Brexit if we choose to do so. Tomorrow MPs must weigh in the balance how this choice must be exercised in the best interests of all our constituents.
Chris Leslie is the Labour MP for Nottingham East
Tom Brake is the Lib Dem MP for Carshalton and Wallington