Scottish court told Brexit could be unilaterally halted

A judge has been told there is an alternative to Theresa May’s “deal or no deal” approach to leaving the EU which could see Brexit unilaterally halted.

Aidan O'Neill QC, representing a group of pro-Remain politicians, raised the prospect at Scotland’s highest civil court of MPs instructing the UK Government to withdraw its Article 50 notification.

He said the approach could be adopted if judges at the European Court of Justice ruled that it would be legal to do so.

He urged Lord Boyd to accept the argument and allow his clients to take their case to the ECJ for a definitive decision.

The politicians behind the judicial review claim their proposal would offer a third option, instead of the UK potentially having to choose between a “bad deal” or leaving the EU with no deal.

Mr O’Neil added: "It's allowing for a third option. This is saying there is potentially another way but only if as a matter of European law it is acceptable."

He is acting on behalf of the Green Party MSPs Andy Wightman and Ross Greer, the Labour MEPs David Martin and Catherine Stihler, and the SNP MEP Alyn Smith.

His colleague Morag Ross QC is acting for the English MPs Tom Brake and Chris Leslie. The politicians, and the barrister Jolyon Maugham QC, have taken the case to the Court of Session in Edinburgh.

The politicians believe that if Westminster voted for the UK to withdraw its Article 50 notice then the government would have to abandon Brexit.

They are seeking a decision from the Scottish court which states that the current government position is wrong, and gives them permission to take the case on to the European court in Luxembourg.

David Johnston QC, for the UK Government, urged Lord Boyd to reject the politicians' case.

He said it was unlawful and against the conventions of the British constitution to allow parliamentarians to seek legal advice from the courts.

He added that constitutional conventions meant that courts could not have a role in the business of parliament.

"The petitioner seeks the assistance of this court in terms of the revocability of article 50 and they do so to help them cast their votes in Parliament,” said Mr Johnston.

"This request violates Parliamentary privilege. It is constitutionally inappropriate for Parliament to have recourse to the the courts for that purpose. This undermines the concept of privilege."

Mr Johnston also said that there was no dispute over the definition of Article 50, and the government had “repeatedly stated” that it would not withdraw the notification. “There is no reason to believe that Parliament will instruct it to do otherwise. The interpretation of article 50 does not result in a dispute,” he added.

He claimed the petition was incompetent and urged the court to dismiss the action.

Lord Boyd said he was issue his judgement in the near future.