Some lawyers are on the pitch. They think it’s all over. Is it now? In a major coup for parliament’s Remainers, the Advocate General of the European Court of Justice has said that the UK should be able to unilaterally revoke Article 50.
In a legal opinion released this morning, Campos Sánchez-Bordona argued that “withdrawal from an international treaty…is by definition a unilateral act of a State party and a manifestation of its sovereignty”. With no EU27 veto, the road to stopping Brexit suddenly looks much shorter.
That faint ripping noise you can hear is the sound of Irish passport applications being torn up across the country. But just how significant is this morning’s news? Given that it comes just a week before the meaningful vote, very. The majority of MPs who hate this Brexit deal but will not countenance a no-deal scenario will now believe they have a) the means to call the whole thing off, and b) no need to worry about the consequences of not backing the Withdrawal Agreement. On the flipside, a government threat to Brexiteers that has always required an unhealthy suspension of disbelief – “it’s this Brexit or none at all” – might now have a bit more credence.
There are, however, several big buts. The first is that this is only a legal opinion and not a binding ruling. The latter will come after the Commons votes. Though the ECJ usually follows the opinion of its Advocate General, there is no guarantee that it will. There is a very real prospect that MPs could find that their handbrake doesn’t exist after all. Also crucial is the caveat that the UK’s withdrawal can be vetoed if it involves “an abusive practice” – revocation would only be permitted as a means of stopping Brexit for good, rather than putting it on ice to buy the government time and strengthen its negotiating position.
Complicating things further is the fact that even revocation would almost certainly need new primary legislation and a government committed to bringing it forward, to say nothing of the time, legislation and EU-approved Article 50 extension it would take to hold another referendum (not legally necessary, but probably politically imperative). Under the Brexit legislation that actually exists right now, the only certainty is that the United Kingdom is leaving the EU with or without a deal on 29 March.
For Theresa May, it’s an inauspicious start to five days of parliamentary debate ahead of the meaningful vote. Parliament has the means, motive and opportunity to impose its will on a weak executive, as this morning’s move to find ministers in contempt of parliament for not sharing the government’s full legal advice on Brexit will demonstrate. Whether there is a way to achieve that fundamental will – stopping a no-deal Brexit – without blowing up the Conservative Party or indeed at all is another question entirely. Though the immediate outcome – May’s deal falling by a North Korean margin – is now looking even more certain, today’s news means the consequences are even harder to predict.