But what if we don’t get all we want?
** Updated 10 December 2018 for the European Court of Justice decision **
The ECJ has now concluded that the UK has the right unilaterally to revoke its Article 50 notification, provided that the revocation is unequivocal and unconditional. That right exists up to the point at which the Withdrawal Agreement enters into force or, if there is no withdrawal agreement, up to the point when the time limit in Article 50 expires. If the right to revocation is exercised, there would be no change in the status of the UK. That means that the rebate and opt-outs would continue as before.
In the light of the ECJ verdict, the text of this article is redundant. It remains on the website as a matter of record.
London4Europe Committee Member and former Home Office senior civil servant Michael Romberg worries about litigation risk. He provides lines to take for if we do not get all we want.
On Tuesday 27 November, the European Court of Justice heard the case about whether the UK has the right unilaterally to withdraw the Article 50 notification. You can read more about it in a series of blogs on the site of the Good Law Project. You can read reports of the hearing on BBC news and from Jolyon Maugham QC of the Good Law Project.
On 4 December 2018 the judge advocate general's advisory opinion said that there is a right of unilateral revocation up to the point at which a withdrawal agreement is concluded (NB not up to the point of withdrawal, unless there is no agreement), so long as the revocation is not abusive (eg an insincere device to extend the time limit): BBC News Report; the Court's press release; the full text. Interestingly, the JAG sees revocation of an article 50 notification as an act of sovereignty which should not be limited by requiring EU consent. The JAG's opinion is not binding on the court.
I have always been a little nervous about the timing of this case. It seemed to me obvious that if the UK withdrew the Article 50 notice after a referendum and the EU27 accepted that then it would be inconceivable that the ECJ - on an application from Nigel Farage say (!) - would in effect expel the UK.
Nor was certainty needed to obtain the People's Vote - both sides' claims about what the law says are driven by their desires of what it should say. The call for a referendum will be determined by politics not law.
However, taking the case to the ECJ at this point risks the court treating the question as an abstract legal issue. While the great weight of legal opinion is that the law allows unilateral withdrawal all litigation comes with a risk.
So, what do we say?
First, a holding reply. We need to study the judgment. It may not be an absolute rejection in all circumstances.
Second, the judgment might allow unilateral withdrawal of the notification in some circumstances and not in others. That would make sense: from the outset the EU has worried that the UK would withdraw and immediately resubmit the notification as a device to get round the need for unanimity for an extension of the Article 50 period. That is surely what underpins the published assertion by some EU bodies that the Article 50 notice may not be withdrawn. Our response should be that we would act with sincerity and can design the withdrawal of the notification in accordance with the ECJ judgment.
Third, the judgment might allow withdrawal of the notification by agreement. Both the EU and member states have made clear that they had rather we stayed in the EU. So if the UK changes its mind we can be confident that the EU will agree that the notification may be withdrawn. Nor would the EU prejudice the chance of a Remain vote by insisting on ending the rebate and opt-outs as a condition of agreement.
Fourth, even if the judgment is utterly negative, it would only be the interpretation of existing law. We are talking about human laws not the laws of physics. Laws can be changed. It may need a messy and drawn-out procedure to do so (successive extensions of the Article 50 negotiating period? treaty change?). But always, with good will on all sides, laws can be revised. Since the UK, EU and member states would all wish it to be done, we can be sure that it will be done.
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