MercoPress. South Atlantic News Agency

New battle front for Brexit: revocation of Article 50 addressed to the European Court

This is the most significant legal development in the Brexit process since the High Court ruled Parliament had to legislate before Government could invoke Article 50

The European Court will be asked if the UK can unilaterally revoke its Article 50 request to leave the European Union, following a “bombshell” ruling from Scotland’s highest court. In what campaigners described as a “case that could decide the fate of the nation”, the Court of Session in Edinburgh announced it would refer the question on to the Court of Justice of the EU (CJEU).

As a result of the “urgency of the issue”, with the UK due to leave the EU on March 29 2019, it said the request was being expedited procedure. The decision from Lord Carloway, Scotland’s most senior judge and Lord President of the Court of Session, overturns a ruling in June when it was said the question being asked was “hypothetical” and the conditions for a reference had not been met.

But Lord Carloway said it was “clear” MPs at Westminster would be required to vote on any Brexit deal agreed by the EU and the UK Government.

He stated: “It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU. The matter is uncertain in that it is the subject of a dispute; as this litigation perhaps demonstrates.

“The answer will have the effect of clarifying the options open to MPs in the lead up to what is now an inevitable vote.”

The case has been brought by a cross party group of politicians: Labour MEPs Catherine Stihler and David Martin, Joanna Cherry MP and Alyn Smith MSP of the SNP and Green MSPs Andy Wightman and Ross Greer, together with lawyer Jolyon Maugham QC, the director of the Good Law Project.

Lawyers at Balfour+Manson acted for the petitioners, with executive chairman Elaine Motion stating: “This is the most significant legal development in the Brexit process since the High Court ruled that Parliament had to legislate before the Government could invoke Article 50.

“This latest decision means the UK Parliament will get clear guidance from the European Court of Justice about the precise powers open to it when it is asked to vote on the Brexit deal.

“The decision will also provide helpful guidance to the European Parliament and to the devolved governments of the UK.”

Mr Maugham described the ruling from the Court of Session as an “absolute bombshell of a judgment for the Government”. He added: “It is no exaggeration to say this is a case that could decide the fate of the nation.
“It’s not too late to wake up from the nightmare that is this Government’s Brexit. Today is a vital step in proving we can remain in the EU with all of our opt outs and rebates.

“There are precedents for very speedy decisions and – my sources at the Court of Justice say – we should have its decision before Christmas.”

In his judgment, Lord Carloway was clear the CJEU would not be advising Parliament on “what it must or ought to do”. Instead he said it would be “merely declaring the law as part of its central function”, adding that “how Parliament chooses to react to that declarator is entirely a matter for that institution”.

Afterwards Mr Wightman said he was “delighted that Inner House has upheld our appeal & agreed to refer question of unilateral revocability if Article 50 to the CJEU”.

Mr Smith hailed the decision as “big news” as he tweeted: “Scotland’s Court of Session has agreed to refer our case to the European Court of Justice in Luxembourg for a ruling on how to revoke Article 50. Brexit is not inevitable, there is still time to change course.”

A Government spokesman said: “We are disappointed by the decision of the Court. We are giving it careful consideration. “But as the Government has repeatedly said, we are committed to implementing the result of the referendum and will not be revoking Article 50.”