09:47, June 08 51 0 theguardian.com

2018-06-08 09:47:07
Scottish judge rejects attempt to get ruling on UK stopping Brexit

A Scottish judge has rejected an attempt by a cross-party group of parliamentarians to get the European court of justice (ECJ) to rule on whether the UK can unilaterally cancel Brexit.

Lord Boyd, sitting in the court of session, said the question of whether article 50 could be unilaterally revoked was “hypothetical and academic”, and criticised the applicants for taking their action.

Upholding objections by lawyers for the UK government, Boyd said ministers in London had repeatedly made it clear they had no intention of stopping the Brexit process, even if there were no deal with the EU.

The judge chided the group of eight MSPs and MPs, led by Andy Wightman, an MSP with the Scottish Green party, for taking the action.

Cementing the victory for the UK government, Boyd said it was constitutionally wrong for parliamentarians to ask a court to interfere in the middle of a legislative process.

“In my opinion, that is a clear and dangerous encroachment on the sovereignty of [the Westminster] parliament,” he said. “It is for parliament itself to determine what options it considers in the process of withdrawing from the European Union.

“It is for parliament to determine what advice, if any, it requires in the course of the legislative process.”

His ruling is the latest setback for the group, which includes Scottish National party, Labour, Liberal Democrat and Green politicians, following a series of court hearings since their action was launched in December.

They want the courts to agree to a referral to the ECJ, so they can establish definitively whether EU treaties allow the UK to unilaterally withdraw its article 50 letter. Legal experts say the treaties are silent on whether that can be done, or if the other 27 EU members need to agree to suspend Brexit.

Jolyon Maugham QC, the lawyer who has helped fund and coordinate the legal action, told his supporters on Friday he had yet to decide whether Boyd’s ruling could be appealed because of the growing financial costs and risks.

Maugham said he needed to know whether the courts would agree in the public interest to limit his liability to pay the UK government’s legal costs for future actions.

“I have limited resources and have already given a personal indemnity against the government’s costs. To appeal, I will need an order limiting that liability, but if we get one, we are likely to appeal,” he wrote in a blogpost responding to the decision.

There was, however, a silver lining: “The court has made it crystal clear that the choice whether to withdraw the article 50 notification and remain [in the EU] is for [the Westminster] parliament, not the government. Parliament has control.”

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