Government could bypass parliament to revoke Article 50
The government will not need to pass legislation in order to revoke Article 50 if the European Court of Justice (ECJ) confirm an initial opinion reached earlier today in Luxembourg, according to Sky sources.
The Wightman case – referred by the Court of Session, the highest court in Scotland – was heard by the ECJ last week and one of its top legal officers – the advocate general Campos Sanchez-Bordona – has announced that the UK has the right to withdraw the clause and stay in the EU before its planned departure on 29 March.
Sky News understands from senior government sources that – in pure legal terms – no legislation needs to be passed in order for any hypothetical revocation to take place.
The government is understood to have received legal advice to that effect, with a ministerial source saying that legislation “might be needed politically, but not legally”.
The source stressed that revoking Article 50 was not government policy, but it means a sitting government has the executive power to withdraw the notice at any point up to 29 March.
The government would not be legally obliged to pass an act of parliament in order to do this.
This had already been noted in the government’s legal argument to appeal the Supreme Court decision to deny an appeal of the Wightman case’s referral to the ECJ.
Government lawyers said: “For the issue of revocability to become live, parliament must first have directed the government, against the government’s settled policy and against the popular answer provided by the referendum, unilaterally to revoke the notice.”
It did not in that legal notice point to the requirement for an act of parliament.
Many in Westminster have presumed that because the Article 50 court case on triggering the EU exit process mandated an act of parliament, that one would be also required to withdraw it.
Government whips are likely to use the increased prospect of a no Brexit outcome to persuade its rebel Brexiteers to back Theresa May’s deal at the key vote on 11 December.