This explainer was written before the UK formally left the European Union on 31 January 2020.
The UK can take back its Article 50 notice without the EU’s permission
The European Court of Justice (ECJ) has said that the decision to withdraw an Article 50 notice “is for that member state alone to take, in accordance with its constitutional requirements”. This follows an Opinion of Advocate General Campos Sánchez-Bordona, delivered on 4 December 2018, which reached the same central conclusion.
The ECJ was responding to a reference from the Court of Session, Scotland’s highest civil court. Several parliamentarians had taken a case to the Scottish court, seeking a declaration on “whether, when and how” the UK’s Article 50 notification can be unilaterally revoked.
The ECJ rejected the argument from the Council of the EU and the European Commission that the UK could only take back its Article 50 notification with the unanimous consent of the European Council, meaning that all EU leaders would have to sign off on the UK reversing Brexit.
The court said it would be inconsistent with the EU’s commitment to the values of liberty and democracy, along with ever closer union among the peoples of Europe, for an EU member state to be forced to leave the EU against its will.
The UK Government argued that, because the UK does not intend to revoke its Article 50 notice, the question before the court was hypothetical and did not require an answer. The ECJ does not give judgments on questions it considers to be hypothetical.
The ECJ rejected the argument that this is a hypothetical question. It emphasised that some of the litigants are MPs, who must vote under Section 13 of the EU Withdrawal Act on the ratification of the agreement. A ruling, the ECJ said, will “clarify the options open to them in exercising their parliamentary mandates”.
The revocation of Article 50 itself must be “submitted in writing to the European Council”, and it must be “unequivocal and unconditional”. That the revocation must be unequivocal implies that the UK could not revoke to get a breathing space in order to prepare better to resend the Article 50 notification in due course. However, it is not exactly clear what the EU could do about it if the UK did adopt that approach.
The ECJ did not say what domestic constitutional processes the UK would have to go through in order to revoke its notice. The court said only that the member state would have to revoke “in accordance with its constitutional requirements and following a democratic process”.
The “domestic constitutional process” required to revoke the notice are a matter of UK law, not EU law. Some experts have argued that an Act of Parliament would be required to allow the Government to revoke. Others think that the Government could revoke without further parliamentary authorisation. If there were any disagreement about whether legislation were required, it would be a question for the UK courts, and would probably go to the UK Supreme Court.
There is no suggestion that a referendum would be legally required for the UK to revoke. However, it may be considered politically necessary.
The ECJ has made clear that revocation of Article 50 could happen any time until the Withdrawal Agreement had come into force. This implies that it could happen even after a Withdrawal Agreement had been concluded and ratified by both parties, provided it had not yet come into force.
If there were no agreement, the revocation could happen any time until the expiry of the Article 50 period: by March 29 2019 if the period is not extended, and after that if it is.
The ECJ has said that if the UK revoked Article 50, it would stay in the EU “under terms that are unchanged as regards its status as a member state”. That means the UK would keep all the opt-outs and the EU budget rebate it has at the moment.
Some politicians and commentators have accused the ECJ of being a “political court”, deliberately timing its ruling to influence the outcome of Parliament’s meaningful vote on the Government’s deal. It is true that the ECJ has given judgment on this case much faster than it usually does. However, others have noted that the ECJ was responding to a request from a UK court to decide an issue relating to a vote this week, suggesting that the ECJ was just discharging its judicial functions.