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Monckton Chambers’ Gerry Facenna QC and Anneli Howard provided pro bono assistance to Morag Ross QC (instructed by Bindmans and Harper Mcleod) representing Lib Dem Brexit Spokesperson Tom Brake MP and Labour’s Chris Leslie MP in their intervention before the Court of Session in Scotland to get a preliminary reference to the CJEU on whether the Article 50 notice could be unilaterally pulled back by the United Kingdom Government in the event of a unsatisfactory deal or no deal scenario.
Permission for judicial review had been initially refused but was granted on appeal by the Lord President of the Inner House in April 2018 ([2018] CHIH 18). The Court of Session in Edinburgh then went on to hear arguments on 22nd May 2018 regarding the petition for a preliminary reference on this “issue of great constitutional importance”. Judgment from the Court of Session was handed down by Lord Boyd on 5 June 2018, refusing to make the reference on the basis that it was hypothetical as the facts upon which the CJEU would be asked to give an answer had not occurred and could not be ascertained. The judgment can be read here.