Judges at Scotland’s highest civil court have rubber-stamped a European Court of Justice decision allowing the UK to unilaterally revoke its withdrawal from the EU.
The Luxembourg court ruled last week that the UK can go back on its decision to trigger Article 50, which started the Brexit process, without the agreement of the other 27 EU member states.
The European Court of Justice (ECJ) found that if this does happen it must be decided following “democratic process”, and would mean the UK remains in the EU as a member state.
It referred the case back to the Court of Session in Edinburgh where a hearing before three judges took place today in which it approved the decision.
Scotland’s most senior judge Lord Carloway, the Lord President, said: “This court will grant a declarator which mirrors the decision of the Court of Justice of the European Union.”
The case was brought by a cross-party group of Scottish politicians, Labour MEPs Catherine Stihler and David Martin, SNP MP Joanna Cherry and MEP Alyn Smith, and Green MSPs Andy Wightman and Ross Greer, together with lawyer Jolyon Maugham QC, director of the Good Law Project.
It was originally heard in the Court of Session and two attempts by the UK government to appeal against the referral to the European court were rejected.
The UK government argued the case was a “hypothetical validity challenge”, but the ECJ disagreed.
In a statement following its ruling on December 10, the ECJ said: “The full court has ruled that, when a member state has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that member state is free to revoke unilaterally that notification.
“That possibility exists for as long as a withdrawal agreement concluded between the EU and that member state has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired.”
It added: “The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council.”
The UK government has stressed it has no plans to revoke Article 50.
Environment secretary Michael Gove previously said the European court ruling did not change the UK’s intention to leave the EU on March 29.
Those behind the case said the UK was now free to change its mind on Brexit if it chose and the ruling enables the UK Parliament to back a People’s Vote knowing a Remain outcome could be acted upon.
Lawyers representing the Council of the European Union and from the European Commission had argued at a hearing at the ECJ last month that revocation was possible but would require unanimous agreement from all member states.
The UK government has been ordered to pay £105,000 in legal fees at the Court of Session after losing its case.
It was the maximum amount available to the politicians and lawyers who pursued answers over whether the EU withdrawal process could be reversed.
Andrew Webster QC, representing the Brexit secretary, highlighted the petitioners had crowdfunded around £200,000 for their legal fees so the court could “take some comfort” in that.
The awards are to be split £60,000 and £45,000 between two groups who were involved in the process.
Speaking outside the court, Mr Greer said: “Throughout this whole process we have seen the contempt the UK Government has shown us for attempting to lead them into finding some legal clarity here.
“In no other example we have found in modern history has a government anywhere gone to these lengths to limit their options, to limit the options of their own parliament.
“They have yet again been roundly defeated, we have opened up another avenue in the Brexit process.
“It’s very much now a political process, not a legal process.”