Article 50 reference not withdrawn, but appeal permission hearing set

An attempt by the UK Government to reverse the reference to the EU Court of Justice on the question of withdrawing the UK's notice to leave the EU failed today – but a further hearing has been fixed on whether the decision to refer can be further appealed.

The Government is challenging last month's decision by the First Division of the Court of Session (click here for report) to refer to the Luxembourg court the question whether the notice given by the Prime Minister under article 50 of the Treaty on the European Union can be unilaterally withdrawn. The court considered an answer relevant to MPs who will have to vote on whether to accept or reject any withdrawal agreement reached with the EU, though the Government insists that there is no question of the notice being withdrawn.

The EU court has already accepted the reference and set a hearing date of 27 November. However the Advocate General, Lord Keen of Elie QC, is seeking permission to appeal to the UK Supreme Court the decision to make the reference.

Jolyon Maugham QC, founder of the Good Law Project which is funding the action, tweeted following today's hearing that the Court of Session "did not withdraw the reference to the CJEU. Instead they fixed a further hearing on 8 November on the question whether the Govt should have permission to appeal to the Supreme Court on the decision to refer". 

Earlier Mr Maugham accused the Government of being "scared witless at the thought of MPs and the public learning how easy it is for us to just remain". Andy Wightman MSP, the lead politician bringing the case, said "I don't know why the UK Government is wasting more time and money opposing a fairly resounding decision of the Inner House."

A Government spokesperson confirmed its "disappointment" at the earlier decision, and that it remained "firm policy" not to revoke the article 50 notice, but declined to comment further on ongoing litigation.