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Case update 08 June 2018

The decision of the Court of Session

I am sorry to say that, earlier this morning, the Court in Edinburgh decided not to ask the European Court if our Parliament could unilaterally withdraw the Article 50 notification.

Why did we want it to ask that question?

There were two reasons.

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First, so that our Parliament – not those of other EU member states – controlled the UK’s destiny inside or outside Europe. That is what *unilateral* revocability delivers.

Second, because *unilateral* revocability means that, if we did decide to Remain, we would do so with the benefit of all of the special arrangements we presently enjoy.

What does the Court’s refusal to ask that question mean?

Parliament can still withdraw the Article 50 notification and Remain – so long as the other member states agree. As things stand they all say they will agree. But if they change their mind we will put the question before the European Court.

Why did we lose?

We lost because the Court said that, as things stand, the Government does not intend to withdraw the A50 notice and so the question whether it can is hypothetical (courts typically do not answer hypothetical questions).

Our argument was this. The Court ask ‘what might happen if our sovereign Parliament did choose to revoke?’ an action we know some MPs and Peers are contemplating.

If that happened, there could be a sustained period during which neither the EU nor the UK knew if the UK was inside or outside the EU. Such would engender chaos in the UK and the EU. The tests the law sets down must operate in the real world.

The Court of Session rejected that response. And my view as to whether it was right or wrong to do so is legally irrelevant.

What happens next? 

A constraint is that I have limited resources and have already given a personal indemnity against the Government’s costs. To appeal I will need an order limiting that liability but, if we get one, we are likely to appeal.

Is there a silver lining? 

The Court has made it crystal clear that the choice whether to withdraw the Article 50 notification and Remain is for Parliament not the Government. Parliament has control.

What has happened to the crowdfunded money? 

The sums we have raised will go, first, to pay the Government’s adverse costs and, second, if there is any left over to pay our own legal team.

Has that money been wasted? 

Litigation is an uncertain business and I’m not in the business of sugar coating the pill on occasions when (as is inevitable) I lose.

Inevitably some will use this defeat to attack me personally. My record to date can be seen here.

What is the status of the other Brexit litigation I am involved in? 

On 19 June the Court will hear Good Law Project’s challenge to the Electoral Commission’s handling of Vote Leave’s ‘donation’ to Darren Grimes. We have already forced it to reopen its investigation.

On 19 June (also) the Court of Appeal in Amsterdam will decide whether the Court below was right to refer to the European Court the question whether we get to keep our EU citizenship if Brexit happens.

Finally, I should say thank you to the solicitors and Counsel who worked so hard for very modest payment. And to the other Petitioners for supporting this attempt to strengthen Parliament.

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