MPs will not get chance to vote against Brexit, Scottish court told

The UK government has told a Scottish court it will never offer MPs the chance to vote against leaving the EU, even if the House of Commons rejects the final Brexit deal.

David Johnston QC, a lawyer for the government, said any legal questions on whether article 50 could be unilaterally withdrawn by the UK were hypothetical and irrelevant, since there was no prospect of ministers doing so.

He urged Lord Doherty, a civil judge in Edinburgh, to throw out an application by seven Scottish politicians for permission to get a European court of justice (ECJ) ruling on whether the UK could revoke its article 50 letter without agreement from all other EU member states.

Johnston told the judge, who will decide by early next week whether the case should go to a full hearing in the court of session, that “this court should not entertain an entirely hypothetical debate, and the court of justice won’t do so either”.

The UK government had repeatedly stated that Britain would leave the EU, come what may, Johnston said. Ministers had already said parliament could vote on the deal, so MPs would have a final say, but he stressed that this would not include rejecting Brexit.

“Parliament will have a clear choice: it can vote to accept the deal or it can move forward with no deal,” he said. “There’s no prospect that the UK government will seek to withdraw the [article 50] application, so the legality of doing so doesn’t need to be resolved.”

The politicians, a group of pro-EU MSPs, MPs and MEPs from the Scottish Greens, Scottish National party, Labour and the Liberal Democrats, told Doherty that parliament had the constitutional right to have the final say on Brexit, regardless of the UK government’s policies on it.

Having already forced Theresa May’s government to overturn one policy by accepting a parliamentary vote on the final deal, they argued that the Commonscould also reject another policy and choose a third option, of remaining inside the EU or reopening negotiations.

Anti-Brexit campaigners, including Lib Dem MPs, also believe there should be a second referendum on the final deal, which the UK government and Labour oppose. An ICM poll for the Guardian last week found 58% of voters, excluding don’t knows, support a second referendum.

Article 50 of the Lisbon treaty does not say whether a member state can independently cancel its application to leave.

 The European commission and UK ministers have said the remaining 27 member states would need to give permission to withdraw an article 50 application. Some EU legal experts and diplomats in Brussels dispute that, but it has never been tested in court. 

Doherty was openly sceptical about the case for a referral to the ECJ. He interrupted Aidan O’Neill QC, for the petitioners, three times to say it was not a live issue since the government was adamant that Brexit would happen and Westminster had not voted to reverse it.

O’Neill insisted that parliament should know what its powers were before it was forced to make a decision on this. “There is a live and genuine dispute between the parties,” he said. “This requires authoritative resolution because it goes to the heart of the law.”

Meanwhile, the lord advocate, James Wolffe QC, Scotland’s senior law officer, warned that leaving the EU without a deal could “materially diminish” the fight against international crime.

It would damage cross-border cooperation and undermine the European arrest warrant system, Wolffe told the BBC. The Irish supreme court refused a European arrest warrant request on Thursday to extradite a fraudster who fled the UK because the country would have left the EU once his prison sentence was over.

The court said about 20 other people were in a similar position in Ireland, and referred the case to the ECJ. - Guardian UK