Article 50 Challenge

The Scottish Question

What Is Happening?

A50 Challenge is conducting a legal challenge in the English High Court to the Government’s conduct of the Brexit process. An opportunity has now arisen to bring the same issues to the attention of the Scottish Courts. 

We are seeking funding for #A50Scotland, a legal action which could utterly transform the politics of Brexit. Please contribute and share this page now!

The Court of Session is considering whether the Article 50 notice can be revoked under EU law.  A50 Challenge is intervening in the Scottish Case so that the Court considers three essential preliminary questions:

1. Can Article 50 notice be revoked without an Act of Parliament?

2. Has a valid decision to leave the European Union been made by the UK?

3. Has Mrs May sent a legitimate Article 50 notice? 

If the answer to the first of these questions is, as we believe, Yes, then as night follows day the answer to the second and third questions must be No. 

Our Sovereign Parliament has not yet made a decision to leave the EU.  The Article 50 notice and current Brexit negotiations are illegitimate.  Not only should the Article 50 notice be withdrawn, but it must be withdrawn. 

This is the fundraising page for #A50Scotland.  You can contribute to #A50Challenge here.

A full description of the A50 Scotland Challenge follows, for those interested in the details of the case.

The Race for Justice

In the case of Andy Wightman MSP and Others against the Advocate General, the Court of Session has been asked whether Mrs May’s letter notifying the UK’s intention to withdraw from the EU may be lawfully revoked. The Petitioners in that case have already been granted permission to apply for Judicial Review, and the hearing is due to take place in Edinburgh on 12th June. Coincidentally, 12th June is the same day as the hearing in the High Court in London to determine whether A50 Challenge should be given permission to apply for Judicial Review. As a result, the Scottish case about revocation will be heard before the A50 Challenge asks the English Court to consider whether the notice has been validly served at all.

An intervention in the Scottish case has the potential to establish, not only whether the Article 50 notice may in theory be withdrawn, but more significantly whether the Article 50 notice has been validly served in the first place. If the Courts do determine that the A50 notification is invalid, then the Government will have to ask Parliament to pass legislation which amounts to a decision that the UK should leave the EU. As it should have done in the first place if Brexit is to be conducted lawfully. 

Where is the Decision?

In granting permission to apply for Judicial Review the Court of Session said the following about the Article 50 process:

Although it has sometimes been reported that what Article 50 requires is two years notice of withdrawal, that is not what it says. The member state first has to decide to withdraw. Having made that decision, it notifies the Council of its “intention”. This triggers a state of affairs in which the EU requires to negotiate and conclude a withdrawal agreement with the state.

The Court also questioned what decision the Secretary of State for Exiting the European Union was referring to when he claimed, on the floor of the House of Commons, that the decision to leave the EU was irreversible.  As we never tire of saying, “Where is the decision?” 

The Court of Session seems to think it is an important question, though in its defence to the Article 50 Challenge the Government denies that any decision is necessary and refuses to identify one. The Court also took the view that, as the Scottish Challenge has the potential to influence future Government and Parliamentary action, there is a substantial argument that the Scottish case should not be dismissed on the grounds of delay.

Can the A50 Notice be Withdrawn?

Two fundamental questions lie at the heart of the A50 Challenge case:

• Has the UK actually made a decision a leave the EU in accordance with its constitutional requirements?

• If there is no such decision, is the Article 50 notice valid?

These questions have not formed part of the Petitioners’ case, to date at least, yet they are fundamental to the questions being considered by the Scottish Court. 

Before considering whether the Article 50 notice may be revoked, the Court will need to consider whether it has been properly served. Has the decision and intention to leave the EU referred to in the letter been validly formed?

Secondly, before inviting the European Court of Justice to consider whether European law permits revocation of the notice, the Scottish Court should address the question of whether there is anything in the European Union (Notification of Withdrawal) Act 2017 itself or other UK legislation, which prohibits revocation. If there is not, this suggests that the 2017 Act does not include the change of law that the Supreme Court determined was necessary before the Government was entitled to serve the Article 50 notice. The notice is invalid.

The Process

The first stage is to apply for permission to intervene. The initial application is made in writing, though an oral hearing will take place if either of the parties requires it. The parties to the dispute, Mr Wightman and his fellow Petitioners, and the Advocate General, must be notified.  We anticipate that the Advocate General will demand a hearing, in an effort to resist our application.

The Court is entitled to grant permission to intervene if:

• the case and the issue that A50 Challenge wishes to address raise matters of public interest;

• A50 Challenge’s intervention is relevant and likely to assist the Court; and

• the intervention will not delay matters or unduly prejudice the parties’ rights.

We are confident that our proposed intervention comfortably meets all of these criteria.

If A50 Challenge is granted permission to intervene, the submission would normally be limited to 5,000 words. The Court may allow a longer written submission and/or allow A50 Challenge to participate in the hearing of the Scottish Case.

What We Need

As the proceedings are being conducted in Scotland, we will need to instruct a whole new set of lawyers. Although much of the work, preparation of the initial drafts of the application for permission, and subsequently the submission itself, can be prepared by our existing team based on work they have already conducted, Scottish Counsel will need to review the draft application and submission, and to appear in Court, should either the application or the intervention itself involve a hearing.  We need to appoint Scottish solicitors to instruct Scottish Counsel, liaise with the other parties and the Courts. 

We are setting the initial target to £20,000 and we will continue to stretch the target as necessary.  We are awaiting estimates from Counsel and lawyers, but it is difficult to work out cost plans, before we know the trajectory of events. We will therefore need to be responsive.

Please support #A50Scotland in any way you can – donate, and spread the word using the hashtags #A50Scotland and #A50Challenge.