A truly pivotal moment as the complex Brexit process draws towards its denouement

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From reader Ludo Thierry:

The beeb RS editor Julian Parsons-Bottom is clearly a busy, busy chap and seems to have missed a fairly significant Court Case that has been passed up to the CJEU by the Court of Session for consideration (despite the Westminster Govt’s belated efforts to prevent this) – and is due to start to be heard around November 27th.

As this seems a fairly important matter which Mr. Parsons-Bottom hasn’t yet come to terms with, could I request the good offices of TUS to circulate a link and snippets for a useful (and short) piece on the Scottish Legal site offering info on this – perhaps critical – development in the UK brexit dog’s breakfast? I’m not usually a great fan of The Deus Ex Machina literary device but – perhaps – if the CJEU decide in favour of common good sense then the Westminster Parliament will have a way out of the current disaster (should they choose to use it – but that’s a different episode altogether): (In all honesty Julian I would have thought it deserved just the tiniest mention on good old beeb Scotland – but what do I know?):

https://www.scottishlegal.com/article/elaine-motion-brexit-case-highlights-how-language-matters-in-both-law-and-politics

Elaine Motion, executive chairman at Balfour+Manson, writes on the significance of language in the Article 50 case currently before the courts.

Language is critical in politics and the law, not least in the unfolding political and legal machinations of the Brexit process.

The Article 50 letter of revocation stated the United Kingdom’s “intention” to withdraw from the European Union – and the word intention is crucial in this context. The implication is that an “intention” can change and that the UK can therefore change its mind about withdrawal, as long as it is following its constitution as an EU member state.

The specific issue – of whether Westminster can decide, legally, to unilaterally withdraw the letter of revocation of EU membership – has never been considered before. And as it is very clearly a question of EU law, it is the CJEU that needs to answer the question as no other court can do it.

MP Joanna Cherry (SNP) was amongst the petitioners. She was joined by Green Members of the Scottish Parliament Andy Wightman and Ross Greer, MEPs David Martin (Labour) and Alyn Smith (SNP), as well as Jolyon Maugham QC.

The UK government has thus far kept silent on whether the letter can be unilaterally revoked – all it has said is that the government will not revoke.

However, it is not a decision for government, but for Parliament – and the petitioners wish to know the answer as that will inform Parliamentarians in any meaningful vote.

Last Thursday 8 November, the UK government’s request to appeal against the decision at the UK Supreme Court of Session was refused by the Court of Session.

The CJEU has made it clear that it recognises this as an urgent and important issue – and have therefore expedited the hearing process. All member states and institutions have the opportunity to lodge observations and to be heard by 27 November.

The argument of the petitioners is that Article 50 can be revoked unilaterally by the UK Parliament – and there is nothing explicit in Article 50 to say that this is not allowed. Indeed, to be able to do so fits with the ethos of the European Union – and not to allow a change of mind would effectively amount to an expulsion. Again, there is no suggestion that this is allowed under Article 50.

With the case fast-tracked because of its significance, the CJEU might deliver its verdict before Christmas. For Jolyon Maugham and the petitioners, it could mean – as Maugham has said – a lovely gift: Brexit was just a bad dream. Others will take a rather different view.

However, for both sides, this is a truly pivotal moment as the complex Brexit process draws towards its denouement. How the European judges define “intention” will be crucial, showing once again that language really does matter.

Anyone remember that scene in Dallas when Bobby came out of the bathroom having taken a shower and all the storylines of the previous episode (culminating in Bobby’s untimely demise) had turned out to be Pamela having ‘ ..a dream..’ – That is my favourite Deus Ex Machina moment to date – but this CJEU case could smash it out of sight!

7 thoughts on “A truly pivotal moment as the complex Brexit process draws towards its denouement

  1. Stuart Mcnicoll November 13, 2018 / 8:20 am

    Interesting times. The UK gov is apparently set to ignore the Court of Session ruling and appeal to the Supreme court anyway. A desperate move on the part of the UK gov, I’m not sure it was the smartest move this not so smart gov has ever made.

    Liked by 1 person

    • xaracen November 13, 2018 / 1:04 pm

      Indeed, and I wonder if the Scottish Court of Session might cite the UK Government to be in Contempt of Court for pursuing an appeal it had just been refused by that court to do.

      Liked by 1 person

    • Finnmacollie November 13, 2018 / 3:13 pm

      I’m not a great fan of the Supreme Court which in my opinion breaches the Treaty of Union. However, now that we are stuck with it, it seems to me that the proper procedures should be followed. If my understanding is correct (which it may not be) then Scottish cases require permission of the Court of Session before being referred to the Supreme Court. If my understanding is in fact correct then defying the Court of Session ruling is more than a desperate move – it is outrageous, and, I would suggest contempt of court.

      Liked by 1 person

      • Stuart Mcnicoll November 13, 2018 / 10:15 pm

        Contempt, absolutely.

        Liked by 1 person

  2. Donald McGregor November 13, 2018 / 9:38 pm

    What a remarkable piece of news to have been missed!
    They really are all Aholes in the MSM

    Thanks for sharing!

    Liked by 1 person

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