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Judge refuses permission for judicial review on article 50 withdrawal

6 February 2018

Seven parliamentarians have failed in an attempt to bring judicial review proceedings to determine whether the UK Government could legally withdraw its article 50 notice under which the UK is set to leave the European Union.

Lord Doherty in the Court of Session refused permission for the proceedings, brought by Green MSP Andy Wightman and others, holding that the suggestion that the UK Government was acting unlawfully was unfounded and that the petition had no reasonable prospect of success.

The petitioners alleged that the Government's stated position was that it was not legally possible, as a matter of European law, for the article 50 notice to be withdrawn, that a letter denying this while affirming that as a matter of policy the notice would not be withdrawn was misleading as a matter of law and fact. The true position of the Government was that the notification could not legally be revoked unilaterally by the United Kingdom, and that therefore there was a dispute between the petitioners and the Government as to the correct interpretation of article 50(2) which only the Court of Justice of the European Union could determine authoritatively.

They sought a preliminary reference to the CJEU on this question under the CJEU’s expedited procedure.

In his opinion issued today, Lord Doherty said that although demonstrating a real prospect of success was a low hurdle for an applicant to overcome, he was satisfied that that hurdle had not been surmounted. "Indeed, in my opinion the application’s prospect of success falls very far short of being a real prospect."

The Government's stated policy, he continued, was very clear. It was not necessary to examine statements in Parliament to ascertain it, nor possible to do so without breaching parliamentary privilege. "In any case, looked at in context, in my opinion the statements founded upon do not in fact support the contention that the rationale of the policy is a belief that unilateral withdrawal is not an available legal option."

He concluded: "Given that neither Parliament nor the Government has any wish to withdraw the notification, the central issue which the petitioners ask the court to decide – whether the UK could unilaterally withdraw the article 50(2) notification – is hypothetical and academic. In those circumstances it is not a matter which this court, or the CJEU, require to adjudicate upon...

"Whether or not the Government has legal advice on that question, and whether or not that advice enables it to reach a firm and concluded view on it, in my view the Government is under no obligation to opine on a matter which is hypothetical and academic."

Those bringing the petition along with Mr Wightman were Ross Greer MSP, MPs Christine Jardine and Joanna Cherry QC, and MEPs Alyn Smith, David Martin and Catherine Stihler.

Click here to view Lord Doherty's opinion.

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