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EU judges to be asked to rule on article 50 withdrawal

21 September 2018

The EU Court of Justice is to be asked to rule on the question whether the United Kingdom’s decision to leave the European Union can be unilaterally revoked.

Lord President Carloway, Lord Menzies and Lord Drummond Young allowed an appeal by Green MSP Andy Wightman and other members of the Scottish, UK and European Parliaments in their petition seeking clarification on when and how the notification given under article 50 of the Treaty on Furtherance of the European Union to leave the European Union (EU) could be revoked before the two-year notice period expires on 29 March 2019.

At first instance, Lord Doherty held that the petition had no real prospect of success, as the court was being asked to decide a hypothetical question; nor had the petitioners established that the UK Government's position was that unilteral withdrawal was not an available option (click here for report).

Before the Inner House the petitioners argued (1) that the issue was indeed one of great constitutional importance, and of direct relevance to parliamentary votes that would be required; (2) that it was competent for the court to make an advisory declarator, and where EU law was involved, issues of parliamentary sovereignty did not arise in the same way as with domestic legislation; there would be no interference with parliamentary proceedings; and the Government's position was irrelevant; (3) that the Lord Ordinary had erred in relation to privilege in that the petition did not involve questioning what had been said in Parliament; and (4) that the Lord Ordinary had erred in determining that the CJEU would not entertain a reference: it was only in exceptional circumstances that it would decline a reference.

The Government argued that there was no real prospect of it seeking to withdraw the notice; no live practical issue arose; the high threshold for advisory declarators was not met; and parliamentary privilege encompassed the non-justiciability of questions about the extent and nature of information which was needed by MPs to perform their duties. The CJEU did not admit requests for purely hypothetical or advisory rulings.

In his opinion Lord Carloway commented that matters had since moved on since the first instance judgment, with the passing of the European Union (Withdrawal) Act 2018, s 13 of which set out how parliamentary approval was to be sought once the negotiations between the UK Government and the EU Council concluded.

The withdrawal agreement could only be ratified if it had been approved by a resolution of the House of Commons and had been debated in the House of Lords. If no approval was forthcoming, the Government had to state how it proposed to proceed with negotiations.

If the Prime Minister stated, prior to 21 January 2019, that no agreement in principle could be reached, the Government had, once again, to state how it proposed to proceed and bring that proposal before both Houses.

The Lord President observed: "The merits, in terms of court time and parties’ expense, of a restrictive approach which limits access to the courts may be clear, but they are inconsistent with the modern view on the functions of a court in the public law field set out by Lord Reed in AXA v Lord Advocate" (2012). Lord Reed had emphasised the need for an interests, rather than a rights, based approach in the area of public law, and the essential function of the courts as being “the preservation of the rule of law, which extends beyond the protection of individuals’ legal rights”.

He noted that the focus of the petition had shifted from one which sought to challenge what was alleged to be Government policy to one seeking a declarator irrespective of the Government’s position. "There is no matter left to be reviewed. It may therefore be doubted whether the case falls within the supervisory jurisdiction of the court and thus within the scope of judicial review... However, the court’s jurisdiction in public law matters is not confined to the review of decisions or failures to act. It may be that the case ought to have proceeded simply by way of an action of declarator rather than a petition for judicial review. However, no procedural point in that regard is taken."

Lord Carloway continued: "It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU. The matter is uncertain in that it is the subject of a dispute, as this litigation perhaps demonstrates. The answer will have the effect of clarifying the options open to MPs in the lead up to what is now an inevitable vote. Whatever the interest of MSPs and MEPs, MPs have an interest in seeing the matter resolved. On that basis the petition is competent at least at the instance of an MP."

The petition did not challenge freedom of speech in Parliament or parliamentary sovereignty. "The court is not advising Parliament on what it must, or ought to, do. It is not otherwise seeking to influence Parliament’s direction of travel. It is merely declaring the law as part of its central function. How Parliament chooses to react to that declarator is entirely a matter for that institution."

The reference would be accompanied by a request for expedited procedure, and as at presnt drafted would ask: “Where a member state has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying member state; and, if so, subject to what conditions and with what effect relative to the member state remaining within the EU?”

Lords Menzies and Drummond Young delivered concurring opinions, the latter observing: "If no agreement can be reached, the default option at present appears to be withdrawal from the European Union without any sort of agreement. The legal consequences of such a move would clearly be immense, and viewed from a professional legal perspective they would appear to be very hard to predict... Clearly this court cannot express an opinion on what Members of Parliament may or may not do in future; to do so would involve a quite unwarranted intrusion into an area that is constitutionally within the competence of Parliament and Parliament alone.

"Nevertheless, I find it impossible to hold that the question of the withdrawal of the article 50 notification is a matter that is irrelevant to Parliament’s deliberations. It is, moreover, an option that some Members of Parliament appear to consider significant. If Members of Parliament are to cast their votes in a responsible manner, it is surely obvious that they should be properly advised as to the existing legal position so far as that may be relevant to their deliberations."

Elaine Motion, executive chairman of Balfour+Manson, the legal firm acting for the petitioners, commented: "This is the most significant legal development in the Brexit process since the High Court ruled that Parliament had to legislate before the Government could invoke article 50.

"This latest decision means the UK Parliament will get clear guidance from the European Court of Justice about the precise powers open to it when it is asked to vote on the Brexit deal. The decision will also provide helpful guidance to the European Parliament and to the devolved governments of the UK."

Click here to view the opinions.

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