Brexit: the important role of the Court of Justice

Waiting for Godot

It attracted surprisingly little press attention but, in a speech of late last week, Donald Tusk offered up a tantalising possibility. Negotiations might take place between the UK and the EU. And when they had concluded, we could choose between the outcome of those negotiations (which he said would be a ‘Hard Brexit’) and the status quo of our remaining in the EU.

Tusk was gently floating a political possibility. He didn’t address the underlying legal question – one of construction of European law – which is whether, having made a notification under Article 50, we can later and unilaterally reverse it.

But it is no exaggeration to say that the legal question is of enormous political importance.

If the answer is ‘no’, the triggering of Article 50 will commit us to leaving the EU. The effective consequence of the answer being ‘yes’, on the other hand, may be to compel the Government to offer Parliament or the electorate at large…

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