Pavlos Eleftheriadis is a professor of public law at the University of Oxford and a barrister at Francis Taylor Building.
Today’s Opinion of the European Court of Justice (ECJ) could not be clearer: the UK can unilaterally and without seeking anyone else’s permission revoke the notification of Article 50.
The opinion is only advisory. The ECJ may still take a different view. Yet, the position taken by the Advocate General is detailed, clear and forcefully argued over about thirty pages of text. It is very likely that the ECJ will indeed follow it.
The Opinion starts by rejecting the argument of the UK government that the question is academic. The Advocate General relies not only on common sense, namely the fact that the Article 50 process has been triggered, but also on the United Kingdom’s own law. He cites the European Union (Withdrawal) Act 2018 which requires Parliament to take a view at the end of the process. It is therefore essential for members of Parliament to know whether the notification is revocable or not.
The Opinion then turns to substance. It suggests that Article 50 needs to be interpreted in light of the Vienna Convention on the Law of Treaties, which applies to general treaties of public international law. The Advocate General notes that international law permits the revocation of withdrawal notifications. Since Article 50 does not exclude it, this general practice must be held to be true in the EU as well.
But the Opinion also ventures on a little-used provision of the EU treaties, which at Article 4 protects the member states’ “national identity”. The Advocate General argues that it would be contrary to the respect owed to member states’ institutions, if the EU forcefully ejected a state which had changed its mind through its own democratic processes.
The Opinion also dismisses fears that a state might revoke its notification tactically to gain time in exit talks. The Advocate General says that any abuse of a right would be evident and be dealt with by way of other legal means. The right exists independently of a – theoretical – possibility of abuse.
The ECJ is very likely to accept this Opinion, not only because it does in most cases, but also because it is extremely well argued – and covers all sorts of arguments and counter-arguments. Where does this leave the UK’s political process? As the Advocate General observes, the process belongs to the Westminster Parliament, under the terms of the 2018 Act.
But what needs to happen on the UK side? Some people have said that Parliament would need to legislate to stop the clock in order, perhaps to have a People’s Vote.
I believe that this is not strictly speaking correct. Under the terms of the 2018 Act, a government minister can postpone the date of Brexit using regulations (s. 20(4) of the 2018 Act). Therefore, if Parliament wants more time in order to reconsider, all it takes from the point of view of domestic law would be the issuing of such a statutory instrument. If Parliament wants to, it can stop the clock on Brexit even without first enacting a new Act of Parliament. All It takes at this stage would be a ministerial decision to amend “exit day”.
All this answers a fundamental question often asked about a People’s Vote. If the public votes to stay in the EU after all, can the UK easily withdraw from the Brexit process? Both the EU’s top legal minds and the UK’s own domestic law say that, yes, it can.
