It has been over two years since Britain made the destructive decision to leave the European Union. Despite the considerable amount of time that has passed it seems that both parties are moving further and further away from reaching an amicable agreement. With the Brexit deadline, the 29th of March 2019, fast-approaching tension and controversy is at an all-time high. Consequently, a group of Scottish Politicians were recently granted permission to ask the European Court of Justice (ECJ) on whether Britain’s decision to leave the European Union can be ‘unilaterally revoked’ by MP’s. This was initially dismissed at first instance however on appeal it was decided that the issue should be referred as a matter of urgency to the ECJ before Westminster votes on the final Brexit deal.
The Lisbon Treaty incorporated Article 50 into the Treaty on the Functioning European Union (TFEU). This Article describes the protocol for a member state who wishes to leave the European Union. The Article, however, is silent upon whether a Member State who has triggered Article 50 can reverse that decision. In their draft reference, the Scottish Court has put it to the ECJ to rule on whether EU law allows a member state can withdraw the notification of its intention to leave the European Union. Furthermore, the court must decide on the conditions and effects would Britain be subjected to following this reversal.
The ECJ ruling essentially has two possible outcomes. Firstly the court could decide that Britain can’t reverse its decision without unanimous agreement from the 27-member states of the EU. With many member states facing costly consequences such as trade and customs barriers, agricultural tariffs, political chaos, and economic loss resulting from Brexit, there is little doubt that all states would agree to this. Alternatively, the ECJ could decide that Westminster could revoke the Article 50 withdrawal process completely on its own, without any input from the other 27-member states. If there was a majority in Parliament for a People’s Vote then Brexit could be reversed. Following Theresa May’s recent humiliation in Salzburg after the rejection of the Chequers Plan, a no-deal Brexit seems a more probable outcome than ever before. However, ministers have repeatedly made it clear that even in such circumstances they have no intention of stopping the Brexit process. As a result, the ECJ’s decision could just be a hypothetical ruling with the only effect being to clarify the options open to the Parliament. In practice, MP’s would be opposed to overturning the process of leaving the European Union and Brexit would still mean Brexit.
By Daniel Forde – Law Editor