We reported previously on a case being heard in the Court of Session, which deals with a request that the Scottish Courts make a reference to the Court of Justice of the European Union (CJEU) on Article 50 of the Treaty of the European Union.
The Petitioners (a group of Scottish politicians, led by the barrister Jolyon Maugham) argued that a notice served under Article 50 could be withdrawn unilaterally by the UK, bringing the Brexit process to an end if it so chose without the permission of the other 27 EU Member States.
Noting that “it is clear, in terms of the European Union (Withdrawal) Act 2018, that MPs will be required to vote on whether to ratify any agreement between the UK Government and the EU Council” and that “if no other proposal is proffered, a vote against ratification will result in the UK’s departure from the EU on 29 March 2019”, the Inner House decided, last month, that it would make a reference to the CJEU for a preliminary ruling on the matter.
Pointing out that “references by the Scottish courts to the CJEU have been rare” the Lord President opined that “it seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU” and that:-
“A declarator by this court, suitably advised by the CJEU, that it is competent to revoke the notification with the effect that the UK will remain a member of the EU, does not infringe the boundaries of parliamentary privilege. A declarator of the law, of the nature sought, does not criticise or call into question anything that has been said in Parliament. It does not fetter or otherwise interfere with the options open to the legislature. It does not challenge freedom of speech in Parliament or parliamentary sovereignty. The court is not advising Parliament on what it must, or ought to, do. It is not otherwise seeking to influence Parliament’s direction of travel. It is merely declaring the law as part of its central function. How Parliament chooses to react to that declarator is entirely a matter for that institution.”
A full note of the Court’s decision can be found here.
The CJEU will hear the case on 27th November.