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Date TimeDecember 04, 2018
VoiceEuropean court of Justice likely to endorse opinion in case taken by anti-Brexit campaigners
UK can stop article 50 without EU approval, top ECJ adviser says
The UK can unilaterally abandon the article 50 process, a senior adviser to the European court of justice (ECJ) has said, in a significant boost to anti-Brexit campaigners.
Campos Sánchez-Bordona said he believed EU law allowed the UK to revoke article 50 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be stopped only by unanimous agreement, even though EU treaties were silent on how an article 50 application could be withdrawn.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 Andy Wightman, a Scottish Green party MSP. They launched their legal action in December last year.
Alyn Smith, a Scottish National party MEP 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 is unusual for the ECJ to reach a decision that contradicts the advice of an advocate general.
If the court endorses his opinion, anti-Brexit campaigners will seize on the ruling as proof that Brexit can be reversed by MPs more smoothly than the UK government has argued.

However, they face one further hurdle: the ECJ will return the case to the Scottish courts, which will need to issue a final ruling on the issue within weeks.
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.
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.”
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