UK Can Back Out of Brexit on Its Own, Rules EU Court

December 10, 2018 Updated: December 10, 2018

LONDON—The UK can reverse Brexit without the agreement of the EU member states, an EU court has ruled, lighting the constitutional path for British lawmakers the day before a crucial vote on leaving the EU.

The ruling will strengthen the campaign for a second referendum on Brexit. It allows the UK to put the firing pin back in the Brexit grenade before it explodes on March 29, without losing its current bespoke arrangement with the EU.

The ruling on Dec. 10 is in line with the advice of the Advocate General of the court, given last week.

Prior to the ruling, it hadn’t been clear whether the UK would need the agreement of all 27 member states if it wanted simply rejoin on the same terms, as if nothing had happened. In theory, one EU state could have derailed the process by demanding renegotiation of issues such as fishing rights, or that the UK join the Euro.

The UK and EU are coming to the end of an interim period, separated but still married, as they hash out a divorce agreement before a deadline of March 29, 2019.

Lawmakers will vote on a draft version of that divorce agreement on Dec. 11. Prime minister Theresa May had intended it as a take it or leave it vote: accept the deal or leave the EU without a bespoke deal in place.

However, last week lawmakers crowbarred in a third option to the vote, opening a confusing web of possibilities, including that of a second referendum and the possibility of overturning Brexit.

Article 50 of the EU membership treaty is clear that Brexit can be stopped at any point within two years, as long as all 27 member states and the UK agree. However, it wasn’t clear whether the UK can decide on its own that it no longer wants to leave.

To answer that question, Scottish lawmakers opposed to Brexit filed a petition in the Scottish court, triggering a request to the European Court of Justice (ECJ), on Sept. 21.

The ECJ court case was expedited, with a ruling coming on Dec. 10, just before the crucial parliamentary vote.

The court said in statement, “When a Member State has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that Member State is free to revoke unilaterally that notification.”

The UK would simply need to write a letter to the European Council in accordance with British constitutional requirements.

“That possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force,” said the statement. “Or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired.”

‘Just a Bad Dream’

Theresa May’s government has insisted all along that there would be no going back from Brexit, but political winds have been building behind a second referendum, as her negotiated Brexit deal looks increasingly unlikely to get the approval of British lawmakers.

Prime Minister Theresa May in Brussels for Brexit deal.
Britain’s Prime Minister Theresa May arrives with Britain’s Permanent Representative to the EU Tim Barrow at an extraordinary EU leaders summit to finalize the Brexit agreement in Brussels, Belgium, on Nov. 25, 2018. (Yves Herman/Pool/Reuters)

May had insisted that lawmakers have only two options: accept her negotiated deal, or “crash out” of the EU with no deal. But many lawmakers reject this binary choice, and believe that there is a third way.

If the UK needs permission from all 27 member states of the EU to reverse Brexit, then it could effectively end up having to renegotiate its membership.

The UK doesn’t have standard membership with the EU, but has, over the years, negotiated various arranged benefits and opt-outs of the standard treaty deal, including keeping its own currency and a handsome rebate. If the UK wishes to remain a member, EU states might decide it needs to start over with the standard package.

“If we can revoke the notification without permission, we will retain the rebate and opt-outs we presently enjoy,” the Good Law Project, one of the parties behind the case, said in a statement. “It can be, legally, like the decision to Brexit was just a bad dream.”

“If we have to go cap-in-hand to the other 27 for permission, we are at risk that a country that will benefit from transfers of financial services or manufacturing will block our path to remain.”

Follow Simon on Twitter: @SPVeazey
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