Charles Day

The ECJ wants to take back control of Brexit

Given that the ECJ often takes years to give an opinion, the speed of its Brexit judgement is unprecedented. Now and again, the mask slips: in theory the ECJ’s court judicial, cares only about good law. In practise this is nakedly political – explicitly so this time, given the vote tomorrow.

It’s being breathlessly reported that ECJ has said Britain can now abandon Brexit unilaterally, without permission. This is just wrong. Unilateral means on our own. We can’t do that under this judgement. Instead, see paras 73 to 75, the ECJ gets to sign off on whether or not we can revoke. The test is not abuse, as proposed by the AG. The test is instead whether we are being “unequivocal and unconditional” the end result is the same – the ECJ decides whether any revocation is valid. This is not in Article 50, the ECJ is just making this up. Because it can. That’s how the E.U. works.

So we must now ask ourselves: Do we want to be part of a mega state with a political court? Do we want a political court where judges are unknown? Do we want a political court where judges are unelected?

This follows Campos Sánchez-Bordona, the Advocate General’s statement last week and I argued at the time that his reference to the Vienna Convention was bizarre. Why should EU law try to set itself up as independent from International Law? The ECJ seems to have spotted this and in paragraph 70 we get a fudge where the ECJ says effectively ‘oh, err, yes we can look at that bit of the Vienna Convention, not by looking at it, but because it informed the people who drafted our own treaty’.

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