Question is ‘academic’, says judge, as ministers have no intention to reverse UK’s EU exit

A judge in Scotland has thrown out an attempt to ask the European court of justice to rule on whether the UK can unilaterally abandon Brexit.

In a blow to a cross-party group of seven Scottish politicians seeking a hearing at the court of justice, Lord Doherty ruled on Tuesday that the question of whether article 50 could be withdrawn unilaterally was “hypothetical and academic”.

He backed the UK government’s position that ministers have no intention to reverse the UK’s withdrawal from the EU, regardless of the economic or political consequences. “In my opinion the application’s prospect of success falls very far short of being a real prospect,” he said.



Doherty, a civil judge sitting in the court of session in Edinburgh, also awarded full costs of the hearing and the case to the UK government, which had opposed the application.

The seven pro-EU politicians, backed with funding from the Good Law Project set up by Jolyon Maugham QC, will decide whether to appeal.

Maugham is urging them to do so, and take the case all the way to the UK supreme court if necessary. He indicated he plans to reopen a crowdfunding appeal to meet its costs.

Jo Maugham QC (@JolyonMaugham) It's plainly in the national interest that MPs, MEPs and MSPs, who face a choice whether to approve Theresa May's deal, know what options are open to them if they don't. I will support an appeal against this decision - to the Supreme Court if necessary. https://t.co/M5LJoxgcaq

The politicians – who include MSPs, MPs and MEPs from the Scottish Greens, Scottish National party, Labour and the Liberal Democrats – argue that voters and the UK parliament need to know whether the UK can unilaterally withdraw article 50.

The Lisbon treaty does not say whether a member state can do so, and there is a legal dispute in Brussels on whether a decision to withdraw article 50 has to be ratified by all the other 27 EU member states.

The European commission says revoking article 50 has to be unanimously agreed by EU members. However, senior European legal experts such as Jean-Claude Piris, the former head of the EU council’s legal service, argue that a member state has the right to do so unilaterally, in the same way as a decision to leave the EU is taken unilaterally.