The UK Supreme Court has granted applications by the devolved governments of Scotland and Wales to intervene in the appeal over the decision of the High Court of England and Wales in the case known as R (on the application of Miller & Dos Santos) v Secretary of State for Exiting the European Union.

The UK Government is seeking to overturn the High Court’s decision that it cannot lawfully invoke Article 50, in order to leave the European Union (EU), without the approval of the UK Parliament.

The Supreme Court’s statement on the matter can be found here.

Interventions in the appeal have been permitted from:-

  • the Lord Advocate, on behalf of the Scottish Government;
  • the Counsel General for Wales, on behalf of the Welsh Government;
  • the so-called "Expat Interveners", George Birnie and others; and
  • the Independent Workers Union of Great Britain.

In addition to the above, the Attorney General for Northern Ireland has made a reference to the Court regarding devolution issues relating to Northern Ireland. Such a reference means that permission to intervene is not necessary.

The Court has stated that counsel for the Scottish Government and for the Independent Workers Union of Great Britain have been invited to address in their skeleton arguments the relevance of points of Scots law, in so far as they do not also form part of the law of England & Wales, to the determination of the proceedings.

European Court of Justice

The Supreme Court concentrates on cases of the greatest public and constitutional importance and is the final court of appeal for all UK civil cases. It should be borne in mind, however, that it is also possible that the case may reach the European Court of Justice (ECJ). In spite of media commentary incorrectly referring to a possible “appeal” to the ECJ, strictly speaking, the Supreme Court might suspend proceedings and refer certain questions on points of EU law to the ECJ; such questions might include whether the invoking of Article 50 can be revoked, a point which the High Court did not look into, as the parties to the case agreed that it cannot. Once the ECJ had considered the answers to those questions, the Supreme Court would resume hearing the case.

The appeal will be heard by an eleven-justice bench of the Supreme Court between 5th and 8th December.