Campos Sánchez-Bordona, the court’s advocate general, said he believed EU law allowed a country to revoke article 50 – the provision of the Lisbon treaty invoked by the UK to give two years’ notice that it intended to leave the union – without requiring the formal agreement of the European commission or other EU member states.
In his formal opinion, Sánchez-Bordona said it was essential MPs knew they could stop the Brexit process, dismissing the UK government’s claims the issue was hypothetical.
The UK government and European commission had insisted the Brexit process could be stopped only by unanimous agreement, even though EU treaties were silent on how an article 50 application could be withdrawn.
Sánchez-Bordona’s opinion is a major boost for a cross-party group of Scottish parliamentarians, led by the Scottish Green party MSP Andy Wightman. They launched their legal action in December last year.
With time running out before Brexit day on 29 March, the court is expected to issue an emergency ruling on the case within weeks, perhaps before Christmas, but probably not until after MPs vote on the withdrawal agreement brokered by Theresa May on 11 December.
If the court endorses the advocate general’s opinion, the case will be referred back to the court of session in Edinburgh for a final decision.
Wightman said he welcomed the advocate general’s ruling but warned that it would need a second EU referendum before article 50 could be revoked by the UK. That would take months to arrange, which would mean the current article 50 process would need to be extended.
“It is now highly likely that, if the people of the UK were to change their minds and decide to remain in the EU, there is now a route to doing so,” he said. A second vote was, he said, “the only option that ends the current chaos and provides a considered and sincere means by which the citizens of the UK can have the final say in this process”.
The Scottish National party MEP Alyn Smith, involved in the legal action, said the opinion confirmed their long-held view that Westminster could “stop the clock” on Brexit.
“We now have a roadmap out of the Brexit shambles, a bright light has switched on above an ‘exit’ sign and the false choice being offered to MPs at Westminster – that it is Mrs May’s disastrous deal or chaos – is shown for what it is, an abuse of parliament,” he said.
The UK government had fought strenuously to prevent the case reaching the European court, tabling a last-minute appeal with the UK supreme court only days before the hearing in Luxembourg. The appeal was rejected.
After a series of hearings at the court of session in Edinburgh, the court of justice held an emergency hearing in Luxembourg late last month, taking the rare step of convening all 28 judges.
While the opinion from Sánchez-Bordona is not binding on the judges, it would be unusual for the ECJ to reach a decision that contradicts the advice of an advocate general.
In the opinion released on Tuesday morning by the ECJ, Sánchez-Bordona rejected the UK government’s argument that the issue of whether article 50 could be unilaterally revoked was hypothetical.
Lord Keen, the UK’s Scottish law adviser, had told the ECJ the UK government had no intention of abandoning Brexit under any circumstances, making the question inadmissible.
The court of justice said Sánchez-Bordona disagreed. “According to the advocate general, the dispute is genuine, the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute,” the court said.
It added that he believed an article 50 process should be handled in the same way as any other international treaty: if a party wished to withdraw from it, it was able to do so unilaterally because it was a sovereign state.
“Unilateral revocation [of article 50] would also be a manifestation of the sovereignty of the departing member state, which chooses to reverse its initial decision,” Sánchez-Bordona said.
The case was initially launched by two Scottish Green party MSPs, Wightman and Ross Greer; the Scottish National party MP Joanna Cherry QC; Smith, the SNP MEP; the Scottish Labour MEP David Martin; and the Scottish Liberal Democrat MP Christine Jardine. The Labour MP Chris Leslie and the Lib Dem MP Tom Brake later joined it as additional parties.
Jolyon Maugham QC, a lawyer and anti-Brexit campaigner whose Good Law Project funded the legal action, said the advocate general’s opinion “puts the decision about our future back into the hands of our own elected representatives, where it belongs … I’m sure MPs will now search their consciences and act in the best interests of the country.”
One of the architects of article 50, Lord Kerr, also welcomed the opinion.
“This is no surprise and, if the court agrees, will confirm that it is still up to us to decide whether we want to keep the existing deal we’ve got in the EU rather than leave on the government’s terms,” he said. “Despite some of the bogus claims that have been made by those who oppose staying in the EU, there would be no price to pay – political or financial – if we were to take back the article 50 letter.”
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