A couple of days ago the European Court of Justice issued a press release stating that the Advocate General of the ECJ, Campos Sanchez-Bordona, had advised the court that the UK should be allowed to unilaterally revoke Article 50 of the Lisbon Treaty and remain in the European Union.
The ECJ has since announced that it will give its verdict on December 10th as to whether the UK would be permitted to ‘cancel‘ Brexit ahead of the March 29th deadline. The decision will come just 24 hours before parliament is due to vote on the withdrawal agreement.
The independently minded among us may consider the timing of the ECJ’s announcement as suspect. Traditionally the ECJ concurs with the feelings of the Advocate General, which makes it likely that prior to the vote in parliament MP’s will be informed that the UK has the authority to unilaterally repeal Article 50 if it so chooses.
If coverage of Brexit over the past week is an accurate indicator, then such a development would only intensity support in the House of Commons for voting down the deal.
The reaction to the Advocate General from people who support leaving the EU has been largely predictable. Those that have labelled warnings over a ‘no deal‘ Brexit from the Bank of England as ‘project fear 2.0‘ believe that this is an attempt to sabotage the UK’s withdrawal from the EU ahead of March 2019. Whilst that is possible, it is not my interpretation of what is going on here.
Immediately after the ECJ’s press release was distributed, Lord Kerr – the author of Article 50 and leading campaigner for a second referendum – commented on the Advocate General’s position:
- This is no surprise and, if it 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.
- We can choose to change course. There is still time and, until the UK has left the EU, the Article 50 letter can be withdrawn.
- With support growing across the country for a People’s Vote, it is clear to me that this is the best way forward. The people should have the right to choose.
Anyone that has followed closely the communications of Lord Kerr will know that over the past two years he has persistently stated that the UK has the right to ‘take back‘ the Article 50 letter before March 29th 2019 if it wants to.
What needs pointing out here is that Kerr – who remains on the Executive Committee of the Trilateral Commission – did not include within the text of Article 50 that a nation state has the right to unilaterally revoke the article. In this context, Article 50 was not definitive from a legal perspective. It would be fair to ask Kerr why that was. Because the article neither says it can or it cannot be revoked unilaterally, it has allowed this latest piece of theatre to gestate just months before the UK is due to leave the EU.
That said, the European Commission in March 2017 were very clear on their stance regarding the revocation of Article 50:
- It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification.
It appears that this will now not prove the case. But before committing to the theory that this is emblematic of a ‘Brexit Betrayal‘, there is an alternative way of looking at it.
I believe that the ECJ’s impending verdict on Article 50 is part of the drive to begin the process of the government legislating for a second referendum. If you decipher the words of Lord Kerr, he is not suggesting that the article be revoked through an act of parliament. Rather, his position is that the British people should have the final say on whether a majority still wants to leave the EU. This is why he is advocating for a remain option on any future ballot paper.
Rejection of the withdrawal agreement through parliament also appears to be part of this process. Fellow Trilateral Commission member Keir Starmer (shadow Brexit secretary) recently told Robert Peston of ITV:
- Unless the deal falls, then other options simply aren’t available.
Starmer followed up these comments with further insight when interviewed by Sophy Ridge on Sky News:
- If we get to a question of a public vote, it will be because the option of a deal has been taken off the table by the Prime Minister who will have failed to put something before parliament that we can have confidence in. She’s pushing these other options by the failure to have got the option of a deal that parliament can support.
Assuming the deal does fall, it will happen just as the ECJ will likely have ruled that Article 50 can be unilaterally revoked. The pathway would then be clear for legislation to begin on another referendum. The People’s Vote and other anti-Brexit campaigners would inevitably double down and rally behind the cause.
So does this mean that the goal is to see Article 50 revoked via the ballot box? Whilst that might be the case, I think the opposite scenario of leaving the EU on World Trade Organisation Terms is more likely. This would mean that the ballot for a second referendum would have to include a ‘no deal‘ option.
When setting out the ‘Roadmap to a People’s Vote‘ in September, Lord Kerr wrote:
- It will ultimately be for our elected representatives to determine the precise route to a People’s Vote and the mechanics by which it would operate.
In other words, it is not for Kerr to say whether no deal should be an option or not on the ballot. And at no point has Kerr publicly stated his opposition to a no deal option. Fellow Trilateralist Keir Starmer told Sophy Ridge on Sky News that he would be ‘worried‘ about the option, but ultimately agreed with Kerr that the question on the ballot would be a matter for parliament to decide.
Far from dismissing an option for no deal, other advocates for remaining in the EU continue to call for it to be included in a referendum. Former Prime Minister Tony Blair is on the record as supporting it. Most recently MP Justine Greening produced a ‘Five Point Proposal for a Second Referendum‘ that supports a three option ballot of the withdrawal agreement, no deal or remain. Gina Miller, founder of the anti-Brexit group ‘Best for Britain‘, appeared on Sky News last weekend and backed the idea of a no deal option:
I think no deal would have to be on the ballot. We would have to be fair to everyone and that’s why I believe it would have to be all three options.
Listen carefully to the words of MP’s and you will hear them speak of how parliament cannot possibly sanction a no deal exit from the EU. Yet some of those sitting in the chamber are quite content with granting that option to the British public.
A separate question is whether Theresa May’s deal with the EU will still be put to a referendum if voted down in parliament. If not, the only other options left would leaving on WTO terms or staying as part of the bloc.
If we do end up back at the polling booth, proponents of remaining in the EU will campaign that this is the last chance to stop Brexit. Proponents of leaving will campaign that this is the last chance in our lifetimes to ‘take back control‘ and vacate the EU entirely. Polling data did not accurately reflect public opinion ahead of the 2016 referendum, and I do not believe it would a second time around. The allure of believing that you can ‘take back control‘ and ‘put one over‘ the establishment is as strong today as it was two years ago.
The ECJ sanctioning the unilateral withdrawal of Article 50 would do nothing to change the likelihood of a no deal option being put to the public. What it will do is galvanise those who are fervently calling for a second vote to take place. But do they fully comprehend what they are asking for?
As I have written before, remain campaigners are so focused on securing the option to remain that they are failing to grasp how the vehicle of another referendum could produce the result that they ardently oppose. A result that would ultimately be to the benefit of the central banking fraternity.
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