'Third way' is now open for the UK in Brexit deal

In a boost for those campaigning for Britain to remain in the EU or hold a second referendum, a top EU legal adviser has confirmed that Britain could withdraw its notice to leave the EU unilaterally, without getting the support of other member nations.

In an opinion statement to judges at the European Court of Justice, published on Tuesday, the Advocate General Campos Sanchez-Bordona pointed to a “third way” that was now open to the UK, which is facing the real prospect of a no-deal Brexit amid massive parliamentary opposition to the withdrawal agreement reached between the British government and the EU-27 group of nations in November.

This third way involved Britain “remaining in the European Union in the face of an unsatisfactory Brexit,” he wrote in the opinion. While it is a non-binding ruling, the opinion of advocate generals are mostly followed by judges at the ECJ. The opinion comes ahead of a ruling in a case brought by petitioners – led by Scottish Members of the European Parliament - who had sought a ruling on Britain’s ability to extract itself from the Article 50 process, by which Britain triggered Brexit just over 18 months ago.

The opinion “puts the decision about our future back in the hands of our own elected representatives where it belongs,” said Jo Maugham QC, one of the petitioners and a prominent anti-Brexit campaigner.

The development adds to the uncertain political landscape in the UK, even as EU leaders and the UK agreed to the terms of Britain’s withdrawal, as well as a vision for the future relationship. Despite repeated direct interventions to parliamentarians, businesses a and the public  from Prime Minister May, parliamentary opposition to the deal – which is due to be voted on on December 11 – shows no sign of waning, with all opposition parties, including the government’s former ally – Northern Ireland’s Democratic Unionist Party – set to oppose the deal.

Opposition unity

In a victory for opposition parties, the British government said it will publish the full and final legal advice given to it on the withdrawal deal agreed with EU nations, after a cross-party coalition of MPs won a motion finding the government in contempt of the Parliament.

Following a lengthy debate on Tuesday afternoon, during which the government introduced an amendment attempting to thwart a contempt motion, MPs voted for the disclosure by 311 to 293 votes, with Labour, the Greens, the Scottish National Party, Plaid Cymru, some MPs from the Conservatives and former allies the Democratic Unionists of Norther Ireland, coming together in an extraordinary and unprecedented show of political unity.

It is the first time ever that a British government has been found in contempt of Parliament in such a way and it was one of three significant votes lost by the government on Tuesday afternoon.

The third amendment lost by the government was tabled by Conservative MP Dominic Grieve that sought to give Parliament a greater say should the government be defeated in the forthcoming vote on the deal. The amendment enables MPs to change any proposals brought back to Parliament after this, greatly strengthening the hand of Parliament, and making it harder for the government to suggest that if Parliament did not pass their deal, Britain would crash out of the EU.

On Monday, the government published a summary of the legal advice, ignoring a parliamentary vote that had required them to publish it in its full and final version. The motion was a “last resort,” after the government “wilfully” refused to comply with Parliament, said Labour’s spokesperson on Brexit issues Keir Starmer, during the debate on Tuesday. “That is contempt of Parliament,” he said, adding that it had huge “constitutional and political significance.”

Leader of the House of Commons Andrea Leadsom rejected the accusation, insisting the Attorney General – who appeared in the House of Commons to present his summary of advice – had treated Parliament with the “greatest respect.”

Following the vote, Leadsom said the government would publish the advice because of the “expressed will” of the House. Geoffrey Cox, the Attorney General, in heated exchanges in the House had insisted that keeping government advice confidential was in the national interest.

The climbdown by the government on the legal advice is particularly significant. It highlights the breakdown of trust and relations within the Conservative Party and between the government and the DUP, as well as the willingness of MPs from both parties to vote against the December 11 vote.

"Indefinitely" stuck

The content of the advice could worsen things further for the government should off-the-record briefings provided to sections of the British press over the weekend prove to be accurate. The Sunday Times had reported cabinet sources as saying the legal advice included a warning that Britain could be "indefinitely" stuck in an EU Customs Union if the backstop arrangements to prevent a hard border in Northern Ireland kick in. This would confirm the worst fears of opponents, including “hard” Brexiteers, who are adamant that Britain must be able to take back control unilaterally and from the outset.

It could further unify the opposition to her deal, raising the prospect of Britain either crashing out of the EU without a deal or triggering a new referendum or a new election.

Speaking in the House of Commons at the start of the five-day debate ahead of the December 11 vote, May insisted that in 2016 the public had withdrawn their consent to membership of the Union, and that a second referendum wouldn’t bring the country together. “What would it say to the 52 per cent who voted to leave if their decision were ignored? What would it do to our politics?,” she asked. She has also rejected suggestions that the government could go back to the EU and renegotiate the deal

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