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Brexit: EU legal opinion says UK can unilaterally withdraw Article 50

Edmund Heaphy
Finance and news reporter
The UK should be allowed to unilaterally halt the Brexit process, a ruling says. Pic: Reuters

An advocate general of the European Court of Justice has said that the court should declare that the UK can unilaterally halt the Brexit process before it leaves the bloc in March.

Spaniard Manuel Campos Sanchez-Bordona said Article 50, the process by which a member state notifies the European Union of its intention to withdraw, can be unilaterally revoked.

The pound is spiking against the US dollar (GBPUSD=X) and euro (GBPEUR=X) on the news.

The pound spiked against the dollar. Pic: Yahoo Finance UK

Though Sanchez-Bordona’s legal opinion is not binding, it will be considered by the court when it rules on the matter at a later date. The opinions of advocates general are endorsed by the court in a majority of cases.

His advice contradicts a submission made by the UK government, which argued that the question of an Article 50 revocation should be considered inadmissible because it is hypothetical and merely theoretical.

A statement from the Court of Justice said Sanchez-Bordona considered the dispute to be “genuine” and that it was not “merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute.”

The opinion hinges on Article 68 of the Vienna Convention on the Law of Treaties, an international convention that, he said, allows countries to revoke notifications of withdrawal from international treaties at any time before they take effect.

The pound also jumped against the euro. Pic: Yahoo Finance UK

“The Advocate General emphasises,” the court said, “that withdrawal from an international treaty, which is the reverse of a treaty-making power, is by definition a unilateral act of a State party and a manifestation of its sovereignty.”

The court, summarising Sanchez-Bordona’s opinion, said that a unilateral revocation would be subject to “certain conditions and limits”. The UK parliament would have to approve such a revocation, considering it authorised the original notification, and “principles of good faith and sincere cooperation must also be observed” in order to prevent abuse of the procedure.

Sanchez-Bordona’s opinion came in response to a referral by Scotland’s highest court to the top EU court last week. The court case was taken by a pro-EU, cross-party group of Scottish politicians seeking to determine whether Article 50 could be unilaterally revoked.  

READ MORE: EU and UK join forces against Brexit legal challenge

The group raised close to £200,000 in donations to fund the case and was assisted by campaigning pro-EU lawyer Jolyon Maugham QC.

The opinion also rejects arguments from both the UK government and European Commission, which said that the Brexit process could only be stopped by unanimous agreement of member states.

While Sanchez-Bordona said that a revocation “by mutual consent” was possible, this would not prevent the UK from unilaterally revoking Article 50.

In a statement, Maugham said that the opinion puts the decision about the UK’s future “back into the hands of our own elected representatives – where it belongs.”

“On this critical issue I’m sure MPs will now search their consciences and act in the best interests of the country,” he said.

The UK government had argued that the group was using the case as “political ammunition” to pressure parliament, and should not risk opening Pandora’s box.

That latter point was echoed by the EU’s top lawyer, Hubert Legal, who said that if Article 50 could be unilaterally revoked, it might be triggered tactically by other governments who want to use it as leverage to win better terms of membership.

The opinion also comes on the same day that a report by the City of London warned that a no-deal Brexit could crash the UK economy. Brexit uncertainty, the report said, is pushing banks to move assets and jobs out of the UK, and could hit future tax revenues from the sector.

At the end of November, the Bank of England warned that a no-deal Brexit will be worse than the global financial crisis. The UK’s central bank said that in its worst-case Brexit scenario, the UK economy could shrink by about 8% within a year. That fall would be the worst the country has seen since the 1920s.

The central bank considered the worst-case scenario to be a Brexit where the UK is unable to agree to a deal with the European Union and there is no transition period after March 2019.

READ MORE: No-deal Brexit ‘could jeopardise financial stability’ as stats show finance pays £75bn in tax