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

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theresa may leadership challengeGetty

  • 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’?


Anti-Brexit marchREUTERS/Henry Nicholls

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.”

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