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EU and UK join forces against Brexit legal challenge

Luke James
Brussels correspondent
The European Court of Justice in Luxembourg where judges heard a legal challenge from anti-Brexit campaigners (Reuters)

Lawyers representing the UK government and European Union have argued that a legal challenge by anti-Brexit campaigners should be rejected by the European Court of Justice (ECJ).

Brexit was described as a “tragedy” by European Commission president Jean-Claude Juncker when the withdrawal agreement was signed-off at a summit on Sunday.

But, in an odd twist in the Brexit process, the EU has found itself on the same side as the UK in a court case over whether Article 50 can be unilaterally revoked.

The case has been brought by a cross-party group of pro-EU politicians from Scotland, including Britain’s longest serving MEP David Martin, SNP MEP Alyn Smith and two Green members of the Scottish parliament.

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The group raised close to £200,000 in donations to fund the case, which is also being assisted by campaigning pro-EU lawyer Jolyon Maugham QC.

After early setbacks in the Scottish courts, the case was finally referred to the ECJ in September and the UK government’s attempts to have that decision overturned failed.

The hearing at the ECJ’s headquarters in Luxembourg began on Tuesday with the lawyer representing the anti-Brexit campaigners arguing their appeal was both legally and politically correct.


Aidan O’Neill QC said: “It cannot be in the interest of the union as a whole to force a member state to leave the union against the wishes of the people.

“The union’s wider interest lies with member states remaining in the EU when their peoples wish to do so.”

The politicians who brought the case hope confirmation that the UK could unilaterally revoke Article 50 – the official notification that it is leaving the EU – would be a timely boost to the campaign to stop Brexit. Maugham has said the ruling “could decide the fate of the nation.”

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SNP MSP Alyn Smith said: “In all the twists and turns of the last two years, it is clear to anyone with eyes to see that there is no good Brexit. Our job is to ensure that any avenue to turn it around is properly explored.”

Lord Keen, representing the UK government, accused them of using the ECJ as “political ammunition to be used in and to pressure the UK parliament”.

“In short, they seek to co-opt this court and into their ongoing political campaign in regard to an issue of almost unparalleled political controversy and sensitivity,” he added.

SNP MEP Alyn Smith is one of the politicians who brought the legal challenge (Getty)

Judges should not risk opening Pandora’s box, Lord Keen concluded. And that argument was backed by the EU’s top lawyer, Hubert Legal, who said Article 50 could be triggered tactically by other governments simply as leverage to winning better terms of membership.

He said allowing unilateral withdrawal could lead to a “disaster” of which “the main victim could be the European project altogether”.

“The prerogative of acting alone will have been exhausted by putting the notification letter on the council’s table,” he said.

Speaking in the House of Commons, Brexit Secretary Stephen Barclay said the UK Government ‘won’t be revoking’ Article 50 whatever the outcome.

He said overturning it would make a ‘mockery’ of the process if it were then ‘re-triggered’ further down the line.

Anti-Brexit campaigners hope the ECJ will make its judgement before MPs vote on the withdrawal agreement on 11 December.

“The ECJ can rule in two ways: either Article 50 is or is not open to revocation, but we need this clarity from the Court,” added Smith.

“The ruling will inform MPs and MEPs ahead of their crucial votes and cut through the spin.”