EURO judges could be set to trample over the result of the Brexit vote by dictating the legal terms under which Article 50 can be exercised, express.co.uk can reveal today.
Unaccountable officials at the European Court of Justice may be called in to rule on the nature of Britain’s divorce talks with Brussels in a dynamite development.
Legal experts say European judges will likely have to pass verdict on whether Article 50, which begins the UK’s formal exit negotiations, can be revoked after activation.
If they were to rule that the notification could be withdrawn it would significantly strengthen the hand of europhiles like Nick Clegg and Ed Miliband who are calling for a parliamentary vote or even a second referendum on the deal Theresa May secures with Brussels.
Critics today branded the situation a “mess” and urged the Prime Minister to sidestep Article 50 altogether by passing an act of parliament repealing all EU laws.
Top lawyers have said that the controversial legal trigger for leaving the bloc, which has never been activated before, is a legal minefield because of its ambiguous wording.
Buried deep in the Lisbon Treaty, eurosceptics say Article 50 is so ambiguous and full of holes because arrogant Brussels bureaucrats never conceived that anyone would want to leave their club.
The eminent barrister Jo Maugham QC, a staunch Remain supporter, has argued that because the clause is at its heart an EU piece of legislation, it will be up to the ECJ to rule on whether or not it can be retracted.
He wrote: “Each of Parliament, the Government, and the public too needs to understand the consequences of notifying under Article 50.
“If it is irreversible, the public should understand before notification that there can be no second referendum or Parliamentary mandate for the Brexit deal.
“If, on the other hand, it is reversible, Parliament and the Government should acknowledge the consequence of the lack of clarity as to what the Referendum mandate meant.
“That consequence is a need for a fresh mandate from Parliament or the electorate on the terms of the negotiated deal.”
The unravelling situation has developed because a group of Remain backers have taken the Government to court, arguing that Article 50 can only be triggered by an act of parliament, and not solely by Mrs May under royal prerogative powers.
During the hearing the Lord Chief Justice, indicated that he could not proceed with the case on the presumption that the clause was irreversible, paving the way for a series of challenges through the UK courts system which would eventually be passed up to the ECJ.
And Dr Philip Syrpis, a professor of EU law at Bristol University, agreed that it would be either up to the ECJ or even the European Council, through issuing fresh guidelines, to decide on whether Article 50 can be rescinded.
He said that claims over the use of the legislation could come to the court either through a direct challenge, for example by British citizens challenging the loss of EU-bestowed rights, or indirectly via a reference from the UK Supreme Court.
Dr Syrpis wrote: “Given the uncertainty here, and the clear link between ascertaining an answer to this question and making the decision to pull the Article 50 trigger, it seems imperative that an answer is found either via the European Council guidelines, or, if necessary, in an action before the Court of Justice to interpret EU law.”
A report by the European Parliament, compiled in February this year, also agreed that Article 50 is an “international agreement” between the exiting country and Brussels, and is “therefore subject to judicial review by the Court of Justice of the EU”.
On the issue of whether it can be withdrawn, researcher Eva-Maria Poptcheva said that most commentators felt such a scenario was “impossible or at least doubtful”, but did not rule it out.
But Lord Pannick, representing the Government in the current High Court case, insisted that the position was “clear” and that “there is no power to revoke a notification” under Article 50 after it has been made.
Ukip MEP Gerard Batten said the growing legal confusion showed that Theresa May should sidestep the flawed exit clause altogether and instead take firm action through the UK parliament.
He said: “The barrister’s opinion here is probably quite right. Article 50 is part of European law and the European Court of Justice’s job is to both interpret and make the final decision over EU law.
“Art 50 was only ever intended as a fig leaf for democracy, it was never intended to be invoked, and therefore was loosely drafted.
“This mess demonstrates why we should forget Article 50 and leave the EU by repealing the 1972 European Communities Act which is perfectly legal under our constitution.”
Theresa May has repeatedly asserted that “Brexit means Brexit” and has promised to trigger Article 50 by the end of March at the latest.
Once the notification is served to Brussels there will be a two-year window in which to negotiate the terms of Britain’s exit from the bloc, which can only be extended with the unanimous agreement of all 28-member states.