By Fergus Colquhoun, Trainee Solicitor

As the political process of Brexit continues to grab headlines, two legal cases are making their way through the courts.

Article 50 Judicial Review

At the beginning of June, Lord Boyd, in the Outer House of the Court of Session, refused a request from a group of MPs, MSPs and MEPs led by the barrister Jolyon Maugham to make a reference to the Court of Justice of the European Union (ECJ).

The petitioners had argued that a notice served under Article 50 of the Treaty on European Union (the article governing the process of withdrawal from the EU) could be unilaterally withdrawn by the UK. That is, that the UK could bring the Brexit process to an end if it so chose, without needing the permission of the other Member States. Since the interpretation of the Treaty is a matter of EU law, only the ECJ can make a definitive ruling on the question. The petitioners, therefore, asked the Court of Session to refer the question on to the ECJ for a ruling.

The previous progress of this case has been covered by us already – see here, here, and here. In brief, it was originally refused permission to proceed to a full hearing on the basis that the question which the petitioners sought to answer was academic and hypothetical (and, therefore, not something on which the Court of Session or the ECJ could rule). The Inner House, on appeal, determined that the case was significant enough that the question of whether it was purely hypothetical should be considered at a full hearing, and gave permission for the case to proceed.

The hearing took place before Lord Boyd, whose opinion may be found here. He agreed that the petition was at its heart hypothetical – the Government has stated that it has no intention of withdrawing the Article 50 notification, and Parliament has not sought (thus far) to force it to do so. He also considered that the case would force the court to intrude on parliamentary sovereignty.

The petitioners have sought to appeal the ruling, and a hearing in the Inner House has been listed for 15th August.

The European Union (Legal Continuity) (Scotland) Bill 2018

The European Union (Withdrawal) Act 2018, passed by the UK Parliament in order to convert existing EU law into British law on Brexit day (and to, therefore, avoid holes appearing in the law), remains a source of controversy between the UK and Scottish governments. Several areas of law currently under the control of the EU will, in terms of the Scotland Act 1998, be devolved to the Scottish Parliament on Brexit day. The Withdrawal Act however provides for a number of these to remain in the control of the British Government and we have discussed this here.

The Scottish Parliament refused legislative consent to the Withdrawal Act and, anticipating that the Act would be amended so that it no longer affected Scotland, the Scottish Government brought forward its own Withdrawal Bill – the European Union (Legal Continuity) (Scotland) Bill 2018. This largely mirrors the UK Act, but does not ‘keep back’ any powers from the Scottish Parliament.

The Scottish Parliament does not have the power to legislate contrary to EU law, and the Presiding Officer of the Parliament came to the conclusion that the Scottish Government’s Bill would do so. The Bill was nevertheless passed by the Parliament, the Lord Advocate having given a statement that in his opinion it was indeed competent.

The question however remained moot, and on 17th April, the question of the competence of the Bill was referred to the Supreme Court by the Advocate General for Scotland (the UK Government’s senior advisor on Scots Law). The hearing will take place on the 24th-25th July before Lady Hale and Lords Reed, Kerr, Sumption, Carnwath, Hodge and Lloyd-Jones. The Lord Advocate will respond on behalf of the Scottish Government.