By David Meyer
December 4, 2018

Until the U.K. actually leaves the European Union, the country still has the option of unilaterally canceling Brexit — that’s the opinion of the top advisor to the EU’s highest court, and if it’s followed by the court itself, it could provide a route out of the Brexit mess.

As things stand, there are only three possible outcomes in the chaotic Brexit situation: the British Parliament could approve the deal struck between the EU and the Conservative government of Theresa May; it could reject the deal and the U.K. could leave with no deal; or Brexit could just not happen.

The first scenario is unlikely, given the plain fact that the deal will leave the U.K. worse off than it is now. The second would be catastrophic and economically dangerous for the U.K. As for the third? There has until very recently been strong opposition to the idea of a second Brexit referendum from most major parties, but the Labour opposition is starting to warm to the idea.

Question is can the U.K. just change its mind on its own? Scottish lawmakers asked the Court of Justice of the European Union (CJEU) to make a ruling. In response the British government tried unsuccessfully to block the case, arguing that the question was academic. Meanwhile, the European Commission and the other EU member states argued that all the member states would need to agree on a Brexit cancellation.

On Tuesday, Advocate General Manuel Campos Sánchez-Bordona delivered his opinion: the U.K. can decide to withdraw Article 50 — the procedure for triggering an exit from the EU — on its own, with some conditions.

Campos Sánchez-Bordona dismissed the British government’s argument, saying the question “has obvious practical importance and is essential in order to resolve the dispute.” As for the idea that the rest of the EU has to agree to a Brexit cancellation, he said this “increases the risk of the [U.K.] leaving the EU against its will,” which would be illegal.

The CJEU’s advocates-general advise the court on the way it should rule, and the court usually agrees — though not always. So while it’s not quite time yet for the Remainer crowd to pop their champagne corks, the opinion does bolster the case for a second referendum.

But what of those conditions in Campos Sánchez-Bordona’s opinion? The first is that the withdrawal of Article 50 would need to take place in a way that fits with the British constitution, which means Parliament would need to approve it. Also: “The principles of good faith and sincere cooperation must also be observed, in order to prevent abuse of the procedure laid down in Article 50.” That means no canceling Article 50 and lodging it again the next day, in order to wangle another two years of negotiation time.

The CJEU is dealing with the case at (relative) high speed, given the fact that Brexit is set to take place in late March.

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