Scotland Court against UK’s request to appeal referral of case regarding ability to unilaterally stop Brexit

On November 8, Scotland’s Court of Session, the supreme civil court of the country, ruled against the UK’s request to appeal the referral of the case regarding the UK’s ability to unilaterally stop Brexit, a decision which will allow the case to be heard in the European Court of Justice (ECJ) in Luxembourg on November 27.

UK Prime Minister Theresa May’s government 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. However, reportedly, a spokesman for the Court of Session said, “The application for permission to appeal to the UK Supreme Court was refused.”

The case was brought by a group of four politicians, David Martin, a Scottish Labour MEP, Alyn Smith, an SNP MEP, and Andy Wightman and Ross Greer, both Green MSPs at Holyrood. They wanted the ECJ to offer a definitive ruling on whether the UK can halt Article 50 process without needing the approval of the 27 other EU member states.

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

However, 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 that they believe that withdrawing an Article 50 application requires the consent of the 27 other EU member states.

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 added 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, “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.”