04:58, November 27 52 0 theguardian.com

2018-11-27 04:58:10
European court to rule on whether article 50 can be reversed

European judges are considering an emergency legal challenge over whether the UK can unilaterally halt Brexit by reversing article 50, the clause that initiated the country’s departure from the EU.

The European court of justice (ECJ) in Luxembourg is hearing a claim by a cross-party group of six Scottish MPs, MEPs and MSPs that argues that politicians at Westminster can stop the process without needing the consent of the other 27 EU member states.

Ahead of the hearing, Jolyon Maugham QC, who is coordinating the case, tweeted: “The Article 50 case is highly significant. It could answer the question how the majority of MPs against no deal together act to prevent one. Simples - they direct the Govt to revoke.”

But the EU council’s legal service has told member states the UK has no right to revoke article 50 unilaterally. The confidential legal advice, which is unpublished, states that all 27 remaining member states must agree unanimously to allow a country to withdraw a decision to leave the European union.

The EU’s article 50 is silent on revocation, which has given rise to different interpretations. According to Jean-Claude Piris, a former head of the EU council legal service: “Nobody can force a state to leave. The only condition is that [the] decision is taken in conformity with [the state’s] constitutional requirements.”

Last week, the UK’s supreme court dismissed a last-minute attempt by the Brexit secretary to divert and derail the Luxembourg hearing into whether article 50 could be reversed.

The UK government is opposing the claim. Lawyers for the Department for Exiting the EU (DExEU) say the issue of reversing article 50 – halting Brexit – is hypothetical since the government has stated it does not intend to revoke the notification and that it would be an encroachment on parliamentary sovereignty.



Three justices – including the president of the court, Lady Hale – refused the Department for Exiting the European Union permission to challenge a ruling by Scotland’s highest court that the issue should be referred to the ECJ in Luxembourg.



The case was begun by Maugham, who is director of the Good Law Project. It has been financed it through a crowdfunding appeal that has almost reached its £200,000 target. The claimants want the ECJ to offer a definitive ruling on whether the UK can halt the article 50 process without needing the approval of the 27 other EU member states.



The SNP’s Joanna Cherry, one of the MPs involved and a vocal supporter of the campaign for a ”people’s vote”, said in advance of the hearing: “Theresa May wants MPs to think the options are her deal or no deal at all, but even she has recently acknowledged there is a third option of no Brexit. We expect this case to establish as a matter of legal certainty that Brexit may be stopped altogether by revoking the article 50 notice either with permission or unilaterally”.

“The fact that the UK government has fought this case tooth and nail at considerable expense shows how desperate the PM is to prevent MPs having the certainty that Brexit can be stopped and that is the question on which the court of justice will now rule”.

In submissions released this week following its unsuccessful supreme court challenge, lawyers for DExEU appeared to concede that MPs could force the government to reverse article 50 through a majority vote in the Commons.

The government paper said: “For the issue of revocability of the notice to become live, parliament must first have directed the government, against the government’s settled policy and against the popular answer provided by the referendum, unilaterally to revoke the notice.”

The Luxembourg judges are expected to reserve judgment on Tuesday but deliver a ruling relatively quickly given the urgency of the issue.

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