The supreme court has dismissed an attempt by the Brexit secretary to derail a European court hearing into whether article 50 – which triggered the UK’s departure from the EU – could be reversed.
In a decision released on Tuesday, the justices refused the government permission to challenge a ruling by Scotland’s highest court that the issue should be referred to the European court of justice in Luxembourg.
The supreme court’s conclusion came after three justices, including the president of the court, Lady Hale, had considered the written request from the Department for Exiting the European Union.
The way now appears clear for the European court of justice to proceed with its emergency hearing, scheduled for 27 November.
The government has opposed the application by a number of Scottish politicians and the anti-Brexit campaigner, Jolyon Maugham QC. Ministers have insisted that since Brexit would go ahead the courts did not need to rule on the hypothetical question of whether article 50 could be reversed.
A government spokesperson said: “We are disappointed by the decision of the court and it remains a matter of firm policy that we will not be revoking article 50.”
Professor Richard Ekins, who lectures in law at Oxford University and is head of the thinktank Policy Exchange’s judicial power project, said: “Next week’s hearing [at the ECJ] will … involve putting both the UK and member states in the wholly unfair position of having to take sides in a dispute that does not yet exist.
“Each will be unable to put proper arguments on the merits because each will have an interest in the outcome that is at this stage only theoretical and speculative. This whole litigation confirms the risks of courts abandoning the principled limits on their constitutional function.”
