Brexit: Scottish request for European ruling on Article 50 withdrawal rejected

KEY POINTS

Scottish politicians sought ECJ ruling on whether UK could withdraw Article 50.
Judge ruled that idea of Article 50 being withdrawn not a real prospect.
Group must now decide on whether to appeal.

A cross-party group of seven Scottish politicians have failed in their bid to ask the European Court of Justice (ECJ) to rule on whether the UK can unilaterally abandon Brexit.

Sitting in Edinburgh, civil judge Lord Doherty said that the question of whether Article 50 could be withdrawn without the consent of the 27 EU member states was "hypothetical and academic" and rejected their request for permission to go to the ECJ.

Doherty backed the position of the British government, which said it had no intention of attempting to reverse its decision on Article 50, regardless of the economic or political consequences.

"I am mindful that demonstrating a real prospect of success is a low hurdle for an applicant to overcome," Doherty said.

"However, I am satisfied that that hurdle has not been surmounted. Indeed, the application's prospect of success falls very far short of being a real prospect.

"The government's stated policy is very clear. It is that the notification under Article 50(2) will not be withdrawn."

The seven politicians who brought the case were Scottish Green Party MSPs Andy Wightman and Ross Greer, Scottish National Party MEP Alyn Smith and MP Joanna Cherry, Labour MEPs David Martin and Catherine Stihler and Liberal Democrat MP Christine Jardine. No Conservative politicians were involved.

The politicians, who were supported by the Good Law Project, will now have to decide whether to appeal against the ruling.

Joylon Maugham QC, who set up the Good Law Project, said he would support an appeal "to the Supreme Court if necessary".

It's plainly in the national interest that MPs, MEPs and MSPs, who face a choice whether to approve Theresa May's deal, know what options are open to them if they don't. I will support an appeal against this decision - to the Supreme Court if necessary. https://t.co/M5LJoxgcaq
— Jo Maugham QC (@JolyonMaugham) February 6, 2018

The Lisbon Treaty does not specify whether a member state can unilaterally withdraw Article 50. The European Commission says that a withdrawal of the article must be unanimously agreed by all members.

However, former head of the EU Council's legal service Jean-Claude Piris has argued that a member state can decide to withdraw Article 50 unilaterally in the same way that it can decide to leave the EU unilaterally.

"Even after triggering Article 50 and notifying the EU of its intention to leave, there is no legal obstacle to the UK changing its mind," Piris said.