Cancel Brexit crowd still have a mountain to climb

A legal opinion published this morning by Manuel Campos Sanchez-Bordona, Advocate-General to the European Court of Justice (ECJ), can be read as a fillip for the continuity Remain campaign in Britain. If the ECJ follows the same lines in its final judgment, this may offer the UK the right to revoke the withdrawal agreement unilaterally, without the prior consent of the EU27.

Here is an excerpt from the summary of the opinion: “A revocation by mutual consent of the departing member state which changes its position and the EU institutions with which it is negotiating its withdrawal is possible. However, this would not prejudice unilateral revocation, which the departing Member State always maintains under Article 50.”

He continues: “Withdrawal from an international treaty… is by definition a unilateral act of a State party and a manifestation of its sovereignty.”

Theresa May’s “it’s my way or the high way” gambit is designed to push MPs into a choice between deal or no deal, turning on the meaningful vote to be held in the Commons on Tuesday. This opinion offers MPs a route out of that dilemma. According to Sanchez-Bordona, it represents “a third way, namely remaining in the EU in the face of an unsatisfactory Brexit”.

It is important to stress that this is a merely a non-binding opinion, not the ECJ’s final ruling, which is expected to follow shortly. However, the court tends to follow the advice of the Advocate-General in around 70% of its rulings.

The case was brought to Scotland’s highest civil court, the Court of Session in Edinburgh (and thence referred to the ECJ) by a group of cross-party campaigners – including SNP and Green MEPS and the lawyer Jolyon Maugham QC, whom you may know because of his over-active use of Twitter.

Although SNP MEP Alyn Smith, one of the campaigners, welcomed Sanchez’s statement (“we now have a roadmap out of the Brexit shambles”), the opinion may well strengthen May’s hand with Brexiteers in her own party pondering whether or not to vote down her deal, as it raises the chances of a no Brexit outcome.

There are further potential difficulties for Remainers. The unilateral right to revoke the withdrawal agreement is subject to several conditions. It would probably need an Act of Parliament, for which there is no majority in the Commons at present.

Furthermore, the right to revoke is not absolute: “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.” David Allen Green, legal expert and writer for the FT, says: “The UK cannot just re-start the clock. If the revocation is not sincere then it is not valid. This is, in effect, not an absolute right.”

Remainers should also take note of the strategic folly of substituting arcane legal judgments for real engagement with Leave voters. If there is to be another referendum with Remain on the ballot, the Remain side would need to be sure that the whole range of opt-outs and the budget rebate, which were key features of the UK’s past relationship with the EU, would be preserved if we were to rejoin.

Without clarity here, the “cancel Brexit” crowd risk having to make a positive pitch for membership of a more aggressively integrationist EU – a pretty hard sell to a traditionally Eurosceptic British public.

This opinion does not improve the harsh political realities facing Remain campaigners. They still need a PM committed to cancelling Brexit, a committed government frontbench, and a majority in the Commons. They have just fifteen weeks to secure all three. It is a tall order.