The Supreme Court has granted 4 applications for permission into intervene in the #Brexit Judicial Review R (Miller and Dos Santos) -v- The Secretary of State for Exiting the European Union. The 4 applicants are: (i) the Scottish Government; (ii) the Welsh Government; (iii) the ‘Expat Interveners”, George Birnie and others; and (iv) the Independent Workers Union of Great Britain. The applications and the Court’s Order do not seem to be publicly available  at this stage. The Court has invited the Scottish Government and the IwUGB to address relevant points of Scots law in their skeleton arguments, where those laws do not also form part of the law of England & Wales.

It’s not yet clear whether the hearing before the Supreme Court will proceed on the previously agreed basis that (for example) the UK”s article 50 notice will be irrevocable, once given. Some commentators have argued that the 1969 Vienna Convention gives the UK the right to withdraw its article 50 notice at any time before it expires, whether or not the other member of the European Union agree, and that conceding the irrevocability point for the purposes of the High Court litigation was a fatal error. This could also be the mechanism which the UK would rely on, if it wanted to hold a meaningful second referendum, after the article 50 notice had been given, in circumstances where the electorate would be asked to choose between staying as a full member of the European Union and leaving on the terms negotiated by the Government by the end of the first quarter of 2019. None of this is straightforward. The irrevicability point is also one of the few potential issues that could end up before the Court of Justice of the European Union before too long.

Interesting times. More to follow …

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