Reverse gear on Brexit?

As Parliament continues its five-day debate on the terms of the Brexit deal the government has been forced to publish the Attorney General’s legal advice to the cabinet on the Withdrawal Agreement and Protocol on Ireland/Northern Ireland.

The advice, made available through a written ministerial statement from Attorney General Geoffrey Cox QC after the government had been found to be in contempt of Parliament earlier this week, states that the proposed backstop arrangement with the EU to prevent a hard Irish border could ‘endure indefinitely’. It can be read in full on the government’s website.

Meanwhile, an Advocate General has ruled that the UK can unilaterally revoke Article 50.

Giving his Opinion in the case, Wightman & Ors v Secretary of State for Exiting the EU (Case C-621/18), AG Campos Sánchez-Bordona said Art 50 of the Treaty on European Union allows revocation ‘until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice’.

He emphasised that withdrawal from an international treaty is by definition a unilateral act of a state party and a manifestation of its sovereignty. Moreover, Art 50 states that a member state must notify the European Council of its ‘intention’ not its decision to withdraw, and such an intention may change.

Advocate General’s Opinions are not binding on the European Court of Justice (ECJ) but are nearly always followed.

One of the litigants, Jolyon Maugham QC, Devereux Chambers, director of the Good Law Project, said the ruling ‘puts the decision about our future back into the hands of our own elected representatives—where it belongs’.

David Greene, senior partner at Edwin Coe and NLJ consultant editor, who represented one of the litigants in the Art 50 case at the Supreme Court last December, said: ‘If the court goes with the Advocate General it will increase the pressure on the government because a live option for Parliament now is the complete withdrawal of the Article 50 Notice.

‘This doesn’t of course address the political issues but it does give MPs another string to their bow as to options should the draft withdrawal agreement be defeated. Whichever way it goes in the ECJ it is unlikely to alter the likelihood of a second referendum because that could be effected under the terms of Art 50 by extending the notice period with the unanimous agreement of the European Council. 

‘That is a much more likely course than a full withdrawal although with backs against the wall and without agreement from the European Council withdrawal of the notice may be the final card. Interesting times.’