Scotland Top Court Refuses To Block Brexit Case From Going To ECJ

by Samuel Abasi Posted on November 9th, 2018

Edinburgh, Scotland : Scotland’s highest court (Court of Session) on Thursday ruled against the UK’s request to appeal the referral of the case regarding the UK’s ability to unilaterally stop Brexit. This decision will allow the case to be heard in the European Court of Justice (ECJ) in Luxembourg later this month.

“The application for permission to appeal to the UK Supreme Court was refused,” a spokesman for the Court of Session said.

The ruling focuses on the rights granted in Article 50 of the Lisbon Treaty and the European Communities Act of 1972. The key question is whether withdrawing from the EU under Article 50 will lead to altering the law without legislation. If this were the case, then the action would itself be illegal.

The majority decision states that the 1972 Act made the “rights, duties and rules derived from EU law” into domestic law in the UK. The Act further created a new constitutional process for creating law within the UK.

[T]he fact that EU law will no longer be part of UK domestic law if the United Kingdom withdraws from the EU Treaties does not mean that Parliament contemplated or intended that ministers could cause the United Kingdom to withdraw from the EU Treaties without prior Parliamentary approval.

The court further stated that it was unlikely that the Parliament and the courts intended for ministers to be granted the power to remove the effect of the Act as the appellant party is claiming they are exercising.

The court concluded that, while Brexit will require a change in domestic law, that change can only be made through Parliamentary legislation, as permitted by the UK Constitution. Therefore, the minister’s action in withdrawing from the EU is political, not legal. The Majority also answered the question regarding Northern Ireland’s assent to the referendum, stating:

The Lord Advocate and the Counsel General for Wales were correct to acknowledge that the Scottish Parliament and the Welsh Assembly did not have a legal veto on the United Kingdom’s withdrawal from the European Union. Nor in our view has the Northern Ireland Assembly. … [T]he consent of the Northern Ireland Assembly is not a legal requirement before the relevant Act of the UK Parliament is passed.

Three Lords dissented from the majority opinion, arguing that the appeal should have been allowed.

Scottish politicians opposed to Britain leaving the European Union had successfully asked for a ruling to clarify whether Britain could withdraw its notification to leave without permission from the bloc’s other members.

Prime Minister Theresa May’s government, struggling to deliver Brexit, had argued that whether or not Britain could reverse the decision was immaterial, since the government had no intention of doing so. The government had asked for permission to appeal the case at Britain’s Supreme Court.

The case has been brought by a cross-party group of six Scottish MPs, MEPs and MSPs, along with Jolyon Maugham QC, the director of the Good Law Project, who helped arrange the case after a crowdfunding appeal. They want the ECJ to offer a definitive ruling on whether the UK can halt the article 50 process without needing the approval of the 27 other EU member states.

The anti-Brexit petitioners aim to show that Britain has a legal unilateral option of staying in the world’s biggest trading bloc once it is known what the outcome of Brexit negotiations is.

The Scottish Green party MSP Andy Wightman, who led the group of politicians, welcomed the decision, saying that “the UK government has failed in its attempts to frustrate our successful referral to the court of justice”.

The SNP’s Joanna Cherry, the only MP in Wightman’s group after warnings from the government that the action was breaching parliamentary privilege, added: “MPs need to know the answer to this question. The choice is not ‘whatever deal Theresa May can get’ or ‘no deal’. The UK government will not now succeed in its ruse to keep parliament in the dark.”

The Department for Exiting the EU said: “The government has made submissions to the CJEU. In any event, the government will not be revoking Article 50.”

Article 50 is silent on whether the member state that triggered it unilaterally can also cancel it unilaterally. UK ministers and the European commission have indicated they believe that withdrawing an article 50 application requires the consent of the 27 other EU member states.

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