Scottish court refuses to refer case on whether Brexit could be stopped to ECJ

Reuters News
Posted: Feb 06, 2018 5:09 AM

By Elisabeth O'Leary

EDINBURGH (Reuters) - A Scottish court rejected on Tuesday a legal attempt to ask the European Court of Justice (ECJ) to clarify whether Britain could unilaterally stop the Brexit process if it wanted to.

The case was brought by a group of anti-Brexit lawmakers in an attempt to show that Brexit could be stopped if Britain withdrew its notification of Article 50 -- the process by which Brexit was formally initiated.

But judge J. Raymond Doherty of Scotland's top civil court declined to refer the matter to the ECJ.

"I am not satisfied that the application has a real prospect of success. Permission to proceed is refused," he said.

A lawyer for the group who brought the case said they would appeal against the ruling.

At stake was an attempt to clarify whether Britain would theoretically have the option of unilaterally withdrawing its Article 50 notification, regardless of whether the 27 other EU members authorized it to do so.

At present, there are no plans to stop Brexit. Prime Minister Theresa May's government is divided on exactly what the terms of Brexit should be but is clear that Britain will be leaving the European Union in March next year.

Anti-Brexit campaigners have been arguing that once the negotiated terms of Brexit are known, lawmakers should be given the option to vote on the deal, and that if the deal were rejected one of the options should be to reverse Brexit and stay in the EU.


“It's plainly in the national interest that MPs, MEPs and MSPs, who face a choice whether to approve Theresa May's deal, know what options are open to them if they don't," said Jo Maugham, a lawyer funding the Scottish legal case.

He was referring to members of the national parliament in London, British members of the European parliament, and members of the devolved Scottish parliament.

"I will support an appeal against this decision - to the Supreme Court if necessary," said Maugham.

He has argued that while there is no doubt that Britain could revoke its Article 50 notification with the permission of the other 27 members, it should seek to establish a legal right to unilaterally revoke whether they like it or not.

"To improve the bargaining position of the UK, to ensure we retain the opt-outs and rebates that we presently enjoy, and to place the decision entirely in the hands of the UK's Parliament and – if it chooses – its people, we must seek to establish a legal route to revocability," he wrote in an explanatory blog.

Tuesday's decision at Scotland's supreme civil court could be appealed before a panel of judges at the court's inner house, and then subsequently -- if permission is granted -- to the UK Supreme Court. From there it could be referred to the ECJ -- the body which rules on the meaning of EU law.

The British government argues that the question of whether it alone can stop Brexit is irrelevant, since it does not intend to change its mind.

The lawmakers behind the challenge represent electoral areas in Scotland which voted strongly to remain in the EU in the June 2016 referendum. The United Kingdom as a whole voted to leave.

(Reporting by Elisabeth O'Leary, writing by Estelle Shirbon; editing by Guy Faulconbridge)