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Brexit case to continue to European court after appeal bid rejected

File photo dated 22/10/18 of a European Union flag in front of the Elizabeth Tower. Theresa May's flagship Brexit legislation is "constitutionally unacceptable" and will need to be substantially rewritten, an influential group of peers has said. PRESS ASSOCIATION Photo. Issue date: Monday January 29, 2018. Peers have raised concerns about the European Union (Withdrawal) Bill ahead of a debate on Tuesday. The peers said the Bill was "fundamentally flawed" in multiple ways and risked "undermining legal certainty". See PA story POLITICS Brexit Lords. Photo credit should read: Victoria Jones/PA Wire

The European Court of Justice will be asked if the UK can unilaterally stop Brexit after the UK Government was refused an appeal by Scotland's highest court.

The Court of Session in Edinburgh ruled in September to refer the question of whether the UK can unilaterally revoke its Article 50 request to leave the European Union to the Court of Justice of the EU (CJEU) after a case brought by a cross-party group of politicians.

A date had been set for November 27 but the UK Government made an application for permission to appeal the ruling to the UK Supreme Court.

Lord Carloway, Scotland's most senior judge and Lord President of the Court of Session, refused the application on Thursday and the case will proceed to the CJEU in the current timescale.

The initial case had been brought by a cross-party group of politicians: Labour MEPs Catherine Stihler and David Martin, Joanna Cherry MP and Alyn Smith MSP of the SNP and Green MSPs Andy Wightman and Ross Greer, together with lawyer Jolyon Maugham QC, director of the Good Law Project.

After the case, Mr Maugham tweeted: "The Government's last-ditch effort to block our attempt to empower Parliament to act in the national interest has failed. Application for permission to appeal refused - and the end of the line for the Government."

"The Government must now focus on meeting the promises made to voters in the Referendum campaign. If it cannot deliver that deal the people must be asked again - because it has no mandate to drive the country off a cliff."

The decision from Lord Carloway in September overturned an earlier ruling when it was said the question being asked was "hypothetical" and the conditions for a reference had not been met.

But Lord Carloway said it was "clear" MPs at Westminster would be required to vote on any Brexit deal agreed by the EU and the UK Government.

In his September judgment, Lord Carloway was clear the CJEU would not be advising Parliament on "what it must or ought to do".

Instead, he said it would be "merely declaring the law as part of its central function", adding that "how Parliament chooses to react to that declarator is entirely a matter for that institution".

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