The court of session in Edinburgh has said a legal action can go ahead to establish whether the UK can unilaterally stop the Brexit process if British voters decide the final deal is unacceptable.
The petition, brought by a group of MPs, MEPs and MSPs from four parties in Scotland, excluding the Conservatives, will now be served on the UK government, which has 21 days to respond.
The seven politicians want the European court of justice (ECJ) to rule on whether the UK can halt the article 50 process without needing the approval of all other 27 EU member states.
The first four signatories were Alyn Smith, an SNP MEP; Ross Greer MSP and Andy Wightman, two MSPs from the Scottish Greens; and David Martin, a Scottish Labour MEP.
Martin has now been joined by the second of Labour’s two Scottish MEPs, Catherine Stihler, adding to the divisions within Labour over Jeremy Corbyn’s policy that the leave vote should be honoured. Corbyn’s stance has been endorsed by Richard Leonard, the recently elected Scottish Labour leader.
Christine Jardine, a Liberal Democrat MP for Edinburgh West, and Joanna Cherry, an SNP MP, QC and former prosecutor, are also signatories.
A crowdfunding campaign to meet the legal costs has passed its £50,000 target, and the group has now filed its petition to the court of session asking judges to refer the issue to the ECJ in Luxembourg.
Michel Barnier, the EU’s chief negotiator, told the Guardian this week that any decision to abandon Brexit needed an agreement from all 27 but the petitioners say that position has never been tested by the courts.
Jolyon Maugham QC, who is coordinating the legal action through his campaign group the Good Law Project, said he believed there was a clear case for giving the UK parliament the right to unilaterally cancel the Brexit process.
It would strengthen Westminster’s ability to abandon Brexit if the deal was so poor it was against the national interest; it would also strengthen the UK government’s hands in the negotiations to know it could withdraw its article 50 letter without needing agreement from all 27 members.
In a significant boost to their case, one of the EU’s most senior legal experts argued the UK could withdraw article 50 without the consent of other member states.
“Art[icle] 50 is based on the principle that withdrawing from the EU is a unilateral decision. Nobody can force a state to leave,” Jean-Claude Piris, former head of the EU council’s legal service, wrote on Twitter on Thursday. “The only condition is that [the] decision is taken in conformity with its constitutional requirements.”
Some EU diplomats agree with Maugham and the petitioners that the question can only be resolved by the ECJ, amid uncertainty about the law. Article 50 is silent about whether it can be revoked before the withdrawal day.
“I know a lot of colleagues who say: ‘[Brexit] is so bad and I wish they hadn’t done it,’ so my working assumption is that there would be unanimity [for the UK to remain],” said one senior diplomat. “But whether the UK can backtrack unilaterally, that I don’t know. That would deprive the 27 of the possibility to extract some concessions.”
In its response to the initial letter advising it of the legal action, the UK government has denied it has formally supported Barnier’s stance that the article 50 process cannot be stopped unilaterally.
The office of the advocate general, the UK government’s Scottish law officer, said: “For the avoidance of doubt, the public position we do recognise having taken is that the stated and consistent position of the government has been and is that the UK’s notification under article 50 (2) will not be withdrawn. This is clearly long established and consistent and discloses no basis for legal challenge.”
The seven politicians dispute that, citing statements by David Davis, the Brexit secretary, and Martin Callanan, the Brexit minister in the Lords, in parliament that article 50 cannot be revoked.
This article was written by Severin Carrell and Jennifer Rankin, for theguardian.com on Friday 22nd December 2017 10.44 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010