The question of whether the UK can unilaterally revoke its notification of withdrawal from the EU is a step closer to being answered after the deadline passed for written statements and observations to be submitted to the Court of Justice of the European Union (CJEU).
This followed the Inner House of the Court of Session earlier this month referring the legal question, which sits at the heart of much ongoing political debate, to the CJEU for a preliminary hearing. The answer will have the effect of clarifying the options open to MPs in the lead up to the Parliamentary vote on whether to ratify any agreement between the UK Government and the EU Council at the end of the current negotiation period.
Jennifer Jack, a Partner at Harper Macleod, is part of a team of leading Scottish and English lawyers, representing two Westminster MPs in this high profile case: Tim Brake, the Liberal Democrat spokesperson on Brexit and Chris Leslie, a prominent Labour backbencher.
All parties involved in the case, including the UK Government, were invited to submit written observations by the 30 October deadline to provide the CJEU with the legal arguments on which it may base its decision, ahead of a single day oral hearing of the case in the Court in Luxembourg on 27 November. Due to the time sensitive nature of the question, the CJEU is following an expedited procedure, which requires concise written submissions.
Jennifer Jack explained the particular conditions of this case, one of very few such references made by the Scottish courts over the past 45 years, saying: "Due to the limited time now left of the two year negotiating period and in order that guidance on the law can be available to MPs ahead of Westminster's 'meaningful vote' on the terms of the UK's exit from the EU, the CJEU has, at the request of the Lord President of the Court of Session in Scotland, applied expedited procedure to this case. Ordinarily, parties' written statements the in relation to a request to the CJEU for a preliminary ruling could run to 20 pages, but in this instance parties have been asked by the CJEU to limit the length of their written statements and observations to 12 pages, in order to enable the Court to give a ruling on this reference as quickly as possible. These written observations will be supplemented by oral submissions to the Court in Luxembourg on 27 November."
She added: "Article 50 does not address whether or not the withdrawal process could be halted. The legal question is therefore whether the Article 50 notification of withdrawal can be unilaterally revoked before the expiry of the two year period; with the effect that the UK would remain in the EU. If the notification is revocable, what conditions apply?
"While the decision on whether or not to leave will be a political one, and this decision would be on legal interpretation only, the importance of this case in terms of obtaining guidance from the courts on important issues of parliamentary sovereignty and rule of law in the context of the constitutional future of this country cannot be underestimated."
The MPs' legal team also includes Morag Ross QC (Axiom Advocates), Gerry Facenna QC and Anneli Howard (both Monckton Chambers) and solicitor John Halford (Bindmans LLP, London).
The case has reached the CJEU after a Court of Session action was brought by petitioners, including members of the Scottish, UK and European Parliaments, in December 2017. It was rejected a first instance, a decision subsequently overturned unanimously on appeal with the Lord President, Lord Carloway, making clear that it was not a "hypothetical or academic" question and that, as it could only be answered definitively by the CJEU, a referral was necessary.
A decision is expected before the end of the year, to take account of the timescales for a vote in the Westminster parliament on the terms of leaving the EU.