Theresa May fails again to block court case that could allow the UK to reverse Brexit

  • Theresa May’s government is refused permission for an appeal to block a court case which will decide whether the UK can reverse Brexit.
  • The Supreme Court on Tuesday rejected an application by the government to appeal against a ruling which has sent the Article 50 case to the European Court of Justice, Europe’s highest court.
  • The government also failed in a previous bid to block the court case.
  • The case will be heard at the ECJ on November 27.

LONDON – The EU’s highest court will decide whether the UK can cancel Brexit after Theresa May’s government failed in a second attempt to stop the hearing going ahead.

The Supreme Court on Tuesday rejected Downing Street’s bid to appeal against a ruling asking the European Court of Justice (ECJ) if the UK can unilaterally withdraw its request to leave the European Union.

That means the ECJ will now rule on 27 November on the question of whether Article 50 – which triggered the UK’s EU withdrawal process – can be revoked without the agreement of the other 27 European member states.

The government – which enlisted five QCs to try and win its appeal – has now failed in two bids to prevent the court case being heard in European courts.

In September, Edinburgh’s Court of Session ruled to refer the question of whether the UK can revoke Article 50 to the ECJ after a legal case was brought by a group of anti-Brexit Scottish politicians.

The UK government made an application to appeal against the ruling to the Supreme Court, but it was refused by Lord Carloway, Scotland’s most senior judge.

The Brexit secretary then applied directly to the Supreme Court for permission to appeal. But, refusing permission on Tuesday, the court said the Court of Session’s ruling was “preliminary” which means it would still have to reach a judgement after the ECJ has issued guidance.

A statement released by the Supreme Court said: “It is clear that this interlocutor did not constitute a final judgment.”

“As both this court and the CJEU have made clear, the preliminary ruling is merely a step in the proceedings pending before the national court – It is that court which must assume responsibility for the subsequent judicial decision,” it said.

The case was initially brought by a cross-party group of anti-Brexit politicians including Joanna Cherry, an SNP MP, and lawyer Jolyon Maugham QC, director of the Good Law project.

After Tuesday’s hearing, Maugham tweeted: “No government acting in the public interest could spend money blinding the eyes of MPs to the options before them.”

‘All just a bad dream’?

The court case argues that Article 50, which triggered the UK’s EU withdrawal process in March 2017, can be revoked without the agreement of the other 27 European member states.

Handing May’s government the unilateral power to reverse Article 50 would allow the UK to retain the perks of its current membership including the economic rebate that Margaret Thatcher negotiated in 1984 and the UK’s opt-out from the Euro. These would potentially be lost were Britain forced to seek the approval of the rest of the EU to reverse Brexit.

Gunther Oettinger, the EU’s Budget Commissioner has previously stated that under those circumstances “the gradual exit from the rebate would still be kept.”

Jolyon Maugham told BI in October that having the power to unilaterally reverse Brexit “sweetens the option of remaining” for the UK government.

“Plainly it is better for the country if we can unilaterally revoke the Article 50 notice,” Maugham added. “In that circumstance, we know that we could treat Brexit as though it was all just a bad dream.”

Michel Barnier, the EU’s chief Brexit negotiator, has previously said that the EU27 would need to provide their consent to reverse the Brexit process. In that scenario, should the government seek in future to remain in the EU, it could lose the perks of membership it currently enjoys.

However, it is not clear whether approval from other countries is required for a country to cancel the process because Article 50 has only been triggered once and the process has never been tested in court.

Lawyers who argued that the matter is “hypothetical” because the government does not intend revoke Article 50 were overruled by Scotland’s highest judge in June, who said it was “neither academic nor premature” to ask whether it was legally competent to revoke the notice. That means has now been fast-tracked from a Scottish court to the European Court of Justice, where it is expected to be settled in as little as six weeks.

Legal opinion is split on the subject of whether the case will be successful. Those arguing against the viability of the case say handing member states the right to withdraw would undermine the integrity of the two-year notice period which defines Article 50.

However, Maugham said he believed the case still has a good prospect of succeeding.

“It’s absolutely fair to say that legal opinion is divided on the matter,” Maugham told Business Insider. “I genuinely don’t know which way the court will jump.”

A spokesperson for the Department for Exiting the Union said that it was considering the decision and added that it was “committed to implementing the result of the referendum.”