The European court of justice is to be asked if the UK can stop the Brexit process unilaterally in a legal challenge being launched in Scotland by pro-European politicians.
A group of four politicians from Labour, the Scottish National party and Scottish Greens wants the European court to rule on whether article 50 can be revoked by the UK on its own if voters or the Commons decide the final Brexit deal is unacceptable.
The four – David Martin, a Scottish Labour MEP, Alyn Smith, an SNP MEP and Andy Wightman and Ross Greer, both Green MSPs at Holyrood – are launching a crowdfunding campaign at 10pm on Wednesday night to raise £50,000 for legal costs
They plan to ask judges in Scotland’s civil court, the court of session in Edinburgh, to agree to refer the issue to the ECJ next year in a move that will strengthen the efforts by campaigners to block Brexit after the deal is finalised.
Their action began on Tuesday when their lawyers sent a formal notice to David Davis, the secretary of state for exiting the EU, and Richard Keen, the UK government’s Scottish law officer, asking them to say whether the UK government believed it could cancel article 50.
They have been given 14 days to respond before their legal team, lead by Aidan O’Neill QC, seeks a judicial review at the court of session.
Jo Maugham QC, who is advising the four politicians for free on behalf of the Good Law Project, said he “would bet my bottom dollar” the UK government will say article 50 can only be cancelled by all 27 other EU member states, and would oppose the judicial review.
Maugham said the question of whether of a member state can unilaterally cancel an article 50 process under the EU treaty had never been tested. The only court that could answer that question was the ECJ.
“Let’s say it’s not a particularly attractive deal, it doesn’t bear comparison with what people thought they would get,” Maugham said. “It is possible that the public mood would be such that we shouldn’t accept the deal. Indeed, it might be that parliament decides that the national interest is best served by us remaining [in the EU].
“It is common ground amongst everybody that with the permission of the other 27 member states we can remain, but I don’t think that’s right, that we should need permission from the other 27. It don’t think it serves the national interest for our future to be contingent upon what serves their interests.
“I don’t think that’s right in law and I think our bargaining position in that situation would be enhanced by us having the ultimate right to decide our own destiny.”
Maugham indicated the legal action has been lodged in Scotland chiefly because anti-Brexit campaigners have found it easier to bring together a cross-party group of Scottish politicians than it had in London. Until recently, the cross party consensus at Holyrood has been to resist Brexit or fight for continued membership of the single market and customs union.
The Scottish Conservatives have since dropped that stance and Richard Leonard, the new leader of Scottish Labour, has backed Jeremy Corbyn’s stance of supporting Brexit.
Maugham said they would seek to get their case urgently heard and referred to the ECJ in the belief it could be settled by late 2018, some months before Brexit takes place in March 2019.
News of the legal action emerged just as Damian Green, the first secretary of state in the UK government, prepared for a fresh round of talks on Brexit with John Swinney, the deputy first minister, in Edinburgh.
Backed by the Welsh government, the Scottish government is seeking guarantees that all EU powers that affect devolved administrations will be automatically transferred to parliaments in Edinburgh, Cardiff and Belfast.
Davis has faced heavy criticisms and warnings he is in contempt of parliamentafter he refused to release an unredacted version to MPs. Russell said the Scottish government had received it after confirming they would keep it secret.
Patrick Harvie, co-leader of the Scottish Greens, said he felt that was wrong. “I am slightly disturbed by the implication of your decision to accept this information on the basis that you will withhold it from parliamentary scrutiny and from public scrutiny,” Harvie said.
Russell said it was not his right to release it: “I think it should be public, I think it will become public, but I can’t make an ex cathedra decision on that.”