Another Article 50 Brexit Case May Head to U.K.'s Top Court

(Bloomberg) -- A U.K. Supreme Court panel will decide whether to allow the British government to appeal a Scottish ruling that sent a case on the reversibility of the Brexit process to the EU’s top tribunal.

The application for permission to appeal has been referred to a panel of Supreme Court President Brenda Hale, Deputy President Robert Reed and Patrick Hodge. The court said Friday that it “is aware of the urgency of this matter” in the email statement acknowledging the application.

  • Earlier this month, the British government asked the Supreme Court for permission to challenge the referral to the EU tribunal.
  • The U.K. wants to challenge a Scottish court’s decision to refer the case to the EU Court of Justice, which has already scheduled a hearing for Nov. 27 under an urgent, fast-track procedure.
  • A ruling from the EU court could come as soon as December or early next year
  • Britain is scheduled to leave EU next March 29
  • Scottish judges referred case to EU in September
  • U.K. Seeks Supreme Court Appeal in Article 50 Brexit Case

“It’s unlikely that the Supreme Court can even consider granting an appeal,” said Jolyon Maugham, a lawyer who championed the case through the Good Law Project. “We don’t think there is any route for an appeal from Scotland’s highest court to the Supreme Court in a case of this nature.”

“There is real difficulty in working out how all of this might happen in advance of Nov. 27,” when the hearing at the EU court is listed, he said by phone. “The Supreme Court hasn’t even decided yet whether it wants to hear an appeal. There really is very little time for it to make up its mind on that question” and then to hold a hearing.

The case would be the third related to Brexit to reach the U.K.’s top court. In early 2017, the court ruled that the government had to get the approval of Parliament to trigger Article 50 and in July of this year the tribunal heard a case related to input from Scotland and Wales into leaving the EU.

If the U.K. judges don’t intervene, the question the bloc’s top judges will have to answer is whether under EU law the so-called Article 50 notice, which officially triggered the Brexit process, can be unilaterally revoked by the U.K. and, if so, under what conditions.

The U.K. has already told the EU judges that the case is frivolous because it has no plans to halt Brexit. In a summary of its submissions to the EU court published Nov. 6, the government said that it “does not intend to revoke the notice it has given” and that “such revocation is simply not in any sense meaningfully in prospect.”

  • The case is Secretary of State for Exiting the European Union vs Wightman and others.

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