21 September, 2018

Andy Wightman MSP and others v Secretary of State for Exiting the EU

The Court of Session has ruled that a question about whether the United Kingdom’s decision to leave the European Union can be revoked should be answered by the Court of Justice of the European Union.

A judicial review raised by a group of Scottish, UK and European politicians sought clarification on when and how the UK notification to leave the European Union (EU) could be unilaterally revoked before the two-year Brexit deadline on 29 March 2019, with the effect that the UK would remain in the EU.

Lead by Ampersand’s Aidan O’Neill QC, instructed by Balfour + Manson LLP, the petitioners argued that the issue should be referred to the Court of Justice of the European Union (CJEU) for advice on European law. At first instance, the judge declined to refer the case to the CJEU, but three appeal judges have now reversed that decision.

The judge presiding over the original Judicial Review had ruled that: the issue was hypothetical as the UK Government did not intend to revoke the notification to leave the EU; the matter encroached upon parliamentary sovereignty and was out with the Court’s jurisdiction; and the conditions for a reference to the CJEU had not been met.

However, the appeal judges noted that matters had since moved on, with the passing of the European Union (Withdrawal) Act 2018. Section 13 of the 2018 Act sets out how parliamentary approval is to be sought once the negotiations between the UK Government and the EU Council conclude.

The withdrawal agreement can only be ratified if it has been approved by a resolution of the House of Commons and been debated in the House of Lords. If no approval is forthcoming, the Government must state how they propose to proceed with negotiations.

If the Prime Minister states, prior to 21 January 2019, that no agreement in principle can be reached, the Government must, once again, state how they propose to proceed and must bring that proposal before both Houses.

The petitioners sought a ruling on whether there was another legally valid choice – that of revoking the notification, with the UK remaining in the EU.

The petitioners argued that the issue was directly relevant to forthcoming parliamentary votes. If a decision to remain in the EU was available as a matter of EU law, the UK Parliament could pursue that option irrespective of Government policy.

Responding, the Secretary of State for Exiting the EU argued that the question was not only hypothetical, but that an attempt to have the court influence the debate or vote was a dangerous encroachment on the sovereignty of Parliament.

However, the appeal judges said that the courts exist as one of the three pillars of the state to provide rulings on what the law is and how it should be applied; and that the question raised by the petitioners was both practical and competent.

They agreed to refer the case to the CJEU for a preliminary hearing seeking advice on EU law.

In their draft reference to the CJEU, they 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?”.

The Court of Session will consider the CJEU’s advice before issuing a final ruling.

The full judgment is available on the Scottish Courts and Tribunals Service website.

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