A cross-party group of politicians has gone to a Scottish court in a bid to seek a European legal ruling on whether the UK Parliament can unilaterally halt the Brexit process if the final deal is deemed unacceptable.
Elected representatives from four parties – Green MSPs Andy Wightman and Ross Greer, Joanna Cherry QC MP and MEP Alyn Smith of the SNP, Labour MEPs David Martin and Catherine Stihler and Liberal Democrat MP Christine Jardine – are named as the “petitioners” launching the case.
They ultimately want the European Court of Justice to determine whether the Article 50 withdrawal process can be revoked by the UK on its own, without first securing the consent of the other 27 EU member states – if the public or Members of Parliament decide the Brexit deal is not acceptable.
The group’s legal representatives went to Scotland’s highest civil court – the Court of Session in Edinburgh – today to ask a judge to refer the question to the Luxembourg court.
The case, attended by Mr Wightman and Ms Cherry, is at a procedural stage, with judge Lord Doherty set to rule next week on whether the Scottish court can have a full hearing on the question of referral.
The UK Government’s lawyers argue that the notification under Article 50 will not be withdrawn, so the case is “hypothetical” and should be dismissed by the court.
Setting out arguments for the seven politicians bringing the case, Aidan O’Neill QC told the court: “The petitioners submit that the current Article 50 notice can, as a matter of European Union law, be revoked unilaterally by the UK acting in good faith.
“The petitioners acknowledge that, being an unresolved point of EU law, this issue can only authoritatively be determined by the Court of Justice of the European Union (CJEU).
“The petitioners therefore request this court to make the necessary… preliminary reference to the CJEU.”
He went on: “There is a live and genuine dispute between the parties and the statement that Article 50 will not be withdrawn is not such as to mean that there is no dispute or that this court is not able to exercise its supervisory jurisdiction… Now is the time in which this matter has to be dealt with.”
David Johnston QC, for the UK Government, asked the court not to proceed with the case, saying it had “no real prospect of success”.
He also insisted there was “no live issue” for the court to address.
“The court should not entertain an entirely hypothetical debate and Court of Justice would not do so either,” he said.
“The policy of the UK Government is that the notification under Article 50 will not be withdrawn and that policy has been repeatedly stated.”
He said the UK Government has committed itself to holding a vote in Parliament on the final deal reached with the EU, where Parliament can then vote to accept the deal or move forward with no deal.
“What is important is that neither of those options involves revoking the notification under Article 50. This is why there is no live issue,” he said.
“It is entirely hypothetical. There is no live issue and no substance in the proceedings.”
Lord Doherty said he will issue his decision “early next week”.