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Scotland court refuses to refer Brexit withdrawal question to ECJ

[JURIST] The Scotland Court of Session [official website] on Tuesday rejected [order, PDF] a petition from a group of individuals from the Scotland and EU parliaments [official websites] asking the court to make a preliminary reference to the European Court of Justice (ECJ) [official website] on the question of whether the UK can unilaterally stop the Brexit process by withdrawing the notification under Article 50(2) of the Treaty on European Union (TEU) [text, PDF] before March 29, 2019.

The preliminary reference procedure is made under Article 267 of the Treaty on the Functioning of EU (TFEU) [text, PDF], which permits national courts of EU member states to refer questions concerning the interpretation EU law to the ECJ. Unlike an appeals procedure, the discretion of whether to refer a court to the ECJ lies entirely with the member state national court, as opposed to the parties in dispute, under this provision. In this case, the concerned EU law is Article 50(2).

Should the Court of Session make such a reference, the parties requested the initiation of ECJ's expedited procedure to decide the question. Webster Johnston, of the Office of the Advocate General of Scotland, stating that "the firm policy of the Government is that the notification under Article 50(2) will not be withdrawn," maintained his position that there is no genuine dispute in this matter for the ECJ to adjudicate and the Court of Session should not entertain any request for a reference. Johnston further argued that any question on the proper interpretation of Article 50(2) is in any event time barred because the petitioners did not make the request within three months of the notification.

Lord Raymond Doherty of the Court of Session agreed with the government's position stating:

The fact of the matter is that Parliament has not proposed, let alone enacted, legislation directed to the United Kingdom's withdrawal of its Article 50(2) notification. The Government's policy is not in conflict with the legislative will of Parliament. Parliament authorised the Government to give the notification. Neither Parliament nor the Government wishes that the notification be withdrawn. ... Given that neither Parliament nor the Government has any wish to withdraw the notification, the central issue which the petitioners ask the court to decide - whether the UK could unilaterally withdraw the Article 50(2) notification - is hypothetical and academic. In those circumstances it is not a matter which this court, or the [ECJ], require to adjudicate upon.
The UK has been slowly progressing on its plans to withdraw from the EU since the Brexit vote [JURIST report] in June 2016. The UK House of Commons voted 324-295 [JURIST report] in January to pass the European Union (Withdrawal) Bill, also known as as the "Brexit" bill. The House of Lords began deliberations on the bill on January 30.

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