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Scottish politicians win latest court battle over whether UK can halt Brexit

Appeal judges at the Court of Session said the case could proceed - PA Wire/PA Images
Appeal judges at the Court of Session said the case could proceed - PA Wire/PA Images

 

A group of pro-Remain Scottish politicians has won the latest round of a legal bid to secure a ruling that Brexit could be unilaterally halted.

They want Scotland’s highest civil court to refer their case to the European Court of Justice for a definitive decision on whether Britain could unilaterally revoke Article 50 if the final deal is rejected by MPs.

They claim the possibility of calling off Brexit would offer a third option, instead of Britain potentially having to choose between a bad deal or leaving the EU with no deal.

Lord Doherty rejected their bid for a judicial review on the issue in the Court of Session in Edinburgh, saying it had little prospect of success, but appeal judges, led by Lord Carloway, Scotland’s senior judge, have overturned that ruling and allowed the review to proceed.

They were critical of the "rhetoric and extraneous and irrelevant material" in the petition but added that there was a "point of substance" which should be "argued in the normal way" in court.

The group includes the Green MSPs Andy Wightman and Ross Greer, the SNP MEP Alyn Smith and the Labour MEPs David Martin and Catherine Sithler.

david davis - Credit: Barcroft
Counsel for David Davis argued the case should be rejected Credit: Barcroft

They are ultimately seeking a definitive ruling on whether the withdrawal process triggered under Article 50 of the Treaty on European Union could be revoked by the UK without first securing the consent of the other 27 member states.

The group's legal team went to Scotland's highest civil court in February to ask a judge to refer the question to the Luxembourg court.

Lord Doherty originally refused to move the case, saying the issue was "hypothetical and academic".

But Lords Carloway, Menzies and Drummond said on Tuesday: "The issue of whether it is legally possible to revoke the notice of withdrawal is, as already stated, one of great importance.

"On one view, authoritative guidance on whether it is legally possible to do so may have the capacity to influence Members of Parliament in deciding what steps to take in advance of, and at the time of, a debate and vote on the European Union (Withdrawal) Bill.

"After all, if Parliament is to be regarded as sovereign, the Government's position on the legality of revoking the notice may not be decisive."

Lord Carloway said the case related to "a matter of very great constitutional importance", but also stated that court may ultimately rule against the politicians and their desire to seek an "authoritative" ruling in Europe.

He wrote: "Whether the CJEU will entertain a question of the type proposed is dependent upon whether this court considers that there is a genuine dispute requiring settlement. If this court sought a reference, the CJEU would be bound to reply to the questions asked.

"In short, therefore, having regard to all the circumstances, the court is of the view that the Lord Ordinary erred in holding that there is no 'real prospect of success' in this petition.

"The court's decision, having heard full argument, may ultimately reflect the Lord Ordinary's view but that is for another day."

David Johnston QC, for Brexit secretary David Davis, asked the court to refuse the appeal and to refuse permission to proceed.

He said Lord Doherty was right to conclude there was no live issue in dispute because of the government's clear and consistent position that the Article 50 notification will not be withdrawn.

Mr Johnston said: "That being so, the question whether, as a matter of law, it could be withdrawn does not arise. The court is being asked to rule on the legality of something which nobody is proposing to do."