On 21 September 2018 the Inner House of Court of Session in Edinburgh (Scotland’s highest court) decided to ask the Court of Justice of the European Union in Luxembourg whether the UK’s notification of intention to leave the EU, issued on 29 March 2016 under Article 50 of the Treaty on European Union, can be unilaterally revoked.

In short the Court of Session is asking for a definitive ruling from Luxembourg on whether it is legally possible to cancel Brexit. The court will not (and cannot) rule on whether the UK should cancel Brexit: that is a question for the UK Parliament. However, in order for Members of Parliament to know what options are open to the UK when voting on the Withdrawal Agreement in early 2019, they need to know whether it is legally possible to revoke the Article 50 notification. This is a question of EU law that can only be definitively answered by the Luxembourg court.

In his concurring judgement Lord Drummond Young in the Court of Session indicated that, without a ruling from the Luxembourg court, the country would be “sleepwalking” into Brexit:

“...many of the consequences of the article 50 declaration will become material as soon as the two-year time limit specified in that declaration comes into effect, on 29 March 2019. After that, the possibility of revocation will plainly be hypothetical. If the rights and powers of interested parties cannot be determined before that date, the country, and its legislature and executive, will be, metaphorically, sleepwalking into the consequences. That is plainly an impractical and undesirable result.”

It remains to be seen what the Luxembourg will make of the case. Watch this space.

For more detailed commentary, read my recent post on the Free Movement blog here.

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