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How the European Union’s Court of Justice may end up having the last word over a hard Brexit

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If the UK fails to secure a Brexit deal with the EU by the end of this month, then it is obliged under the so-called Benn Act to request an extension to the process. But what if the government manages to bypass the Benn Act and take the country out of the EU without a deal? Robert Basedow explains that in this scenario it would likely fall upon the EU’s Court of Justice to rule on the legality of the UK’s departure. A hard Brexit that breaches the British constitution would equally breach Article 50 TEU and be void under European law. The British government and the European Union seem unlikely to agree on a modified withdrawal agreement to ensure an orderly exit of the United Kingdom from the EU on 31 October. Despite its rhetoric and new proposals, the current British government appears

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How the European Union’s Court of Justice may end up having the last word over a hard BrexitIf the UK fails to secure a Brexit deal with the EU by the end of this month, then it is obliged under the so-called Benn Act to request an extension to the process. But what if the government manages to bypass the Benn Act and take the country out of the EU without a deal? Robert Basedow explains that in this scenario it would likely fall upon the EU’s Court of Justice to rule on the legality of the UK’s departure. A hard Brexit that breaches the British constitution would equally breach Article 50 TEU and be void under European law.

The British government and the European Union seem unlikely to agree on a modified withdrawal agreement to ensure an orderly exit of the United Kingdom from the EU on 31 October. Despite its rhetoric and new proposals, the current British government appears to be little inclined to strike a deal with the EU and more importantly does not command a majority in the House of Commons to actually pass a modified withdrawal agreement.

EU member states, in turn, have little appetite to make further concessions to a British government without a parliamentary majority – notably in the light of the so-called Benn Act. The Benn Act forces the British government to request another extension to avert a ‘hard Brexit’ in case of non-agreement. From the European perspective, it seems indeed reasonable to aim for an extension and to wait for the upcoming general election and constitution of a new parliament and British government to conclude a withdrawal agreement and to finally start talks on future EU-UK relations.

The EU and the UK therefore seem to be headed for another Brexit extension as foreseen under the Benn Act. Observers however warn that a ‘hard Brexit’ without a deal is not off the table for now. Indeed, the current British government seems to be contemplating the use of various legal and political loopholes in the Benn Act to get the country out of the EU on 31 October even without a deal. Former British Prime Minister John Major for instance warns that the government may use ‘Orders of Council’ – in essence executive decrees – to bypass the Benn Act and have the country leave the EU at the end of the month. Another possibility is the so-called ‘second letter’ option. The government could comply with the Benn Act and send a first letter requesting an extension but then send a second letter revoking this request.

How the European Union’s Court of Justice may end up having the last word over a hard Brexit

Court of Justice building in Luxembourg, Credit: katarina_dzurekova (CC BY 2.0)

In case the British government resorts to these strategies, the matter would most likely end up before the British Supreme Court. The Supreme Court would have to assess whether the government’s actions are lawful under the British constitution. In the light of the Supreme Court’s recent ruling on parliamentary prorogation, it is reasonable to assume that the Supreme Court would rule against the government and declare its actions void. Orders of Council and a second letter would violate the express and manifest will of Parliament.

The current British government is most certainly aware of the risks of an intervention of the Supreme Court for its objective to deliver Brexit by the end of this month. Hence, the government is likely to take any actions to bypass the Benn Act at the very last minute so as to make it impossible for Parliament and the Supreme Court to frustrate its strategy. Indeed, timing may be Boris Johnson’s strongest card to play yet. A second letter or Orders of Council sent at the very last minute could make it impossible for Parliament and the Supreme Court to step in and prevent a hard Brexit.

In this case, a complex legal situation would arise. At first sight, it would seem that hard-line Brexiteers would have achieved their objective. The UK would have left the EU and turned into a third country from the EU’s perspective. The British Supreme Court would then probably look into the government’s actions in the days following Brexit and probably find that the government acted unlawfully and in contempt of Parliament. The Supreme Court, however, could not simply declare the government’s actions “unlawful, void and of no effect” as done in the case of parliamentary prorogation. The UK would already have left the EU and the Supreme Court could not order the British government to re-establish the UK’s status as an EU member state as if nothing had happened. Re-establishing the UK’s status as an EU member state would lie beyond the powers of the British government.

It is at this moment that the EU’s Court of Justice in Luxemburg would most likely be called upon to intervene by British and European citizens and courts. Article 50 of the Treaty on the European Union (TEU) stipulates that a member state may leave the EU in accordance with the procedures enshrined in its constitution. If the UK were indeed to drop out of the EU at the end of this month in defiance of the Benn Act and the Supreme Court ruled that the government’s actions were unlawful, the UK’s exit from the EU would not conform to Article 50 TEU. Under these circumstances, the European Court of Justice would in all likelihood find that the UK did not legally exit the EU and that the EU must not withhold the rights of the UK, British and concerned European citizens – such as the EU’s fundamental rights or its fundamental freedoms – enshrined in European law.

In short, a hard Brexit, which breaches the British constitution, would equally breach Article 50 TEU and be void under European law. The European Court of Justice in Luxemburg might thus find itself in the highly delicate position of ruling on the legality of a hard Brexit. Assuming that a general election is imminent, the current British government may have less leeway to create hard facts and thereby to bind a future government – by crashing the country out of the EU – than it appears right now.

Note: This article gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics.

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Robert Basedow – LSE
Robert Basedow is an Assistant Professor in International Political Economy at the LSE’s European Institute.

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