Brexit: a role for judicial review

(This article first appeared in the Journal Online on 12 November 2018)

How does the decision to seek a ruling of the EU Court on withdrawal of notice to leave the EU sit with traditional views of the role of the courts? The author considers it an enlightened approach

by Geoffrey Mitchell QC

Like many others who have been following the Brexit negotiations, you probably thought that the UK had two options: either to reach an agreement with the other EU member states, or the so-called “no-deal Brexit”. There may, however, be a third option – revocation of the article 50 notice, in which the UK notified the EU of its intention to leave.

In Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62 (21 September 2018), by way of a petition for judicial review, the petitioners asked the Court of Session to declare whether revocation was legally competent. The Lord Ordinary refused the petition, but a reclaiming motion was successful. All three judges in the First Division (the Lord President (Carloway), Lord Menzies and Lord Drummond Young) issued written opinions, and referred the issue to the EU Court of Justice (CJEU) for a preliminary ruling. A decision from that court is expected soon. The issues raised by the opinion, and the way in which the court chose to deal with them, are interesting.

For example, even if it is competent to revoke the article 50 notice, is there a realistic prospect of that event occurring? If not, why would the Inner House even entertain the notion? Further, the petition contained none of the typical judicial review complaints or remedies, so why was the court prepared to deal with the application? As will be seen, there were answers to those questions. It is submitted that the decision is a fine example of the court’s willingness to meet head on, and to grapple with, issues that affect lives and interests.

The impetus for the petition

On 29 March 2017, in terms of article 50 of the Treaty on European Union, the Prime Minister notified the European Council that the UK intended to withdraw from the EU. The Prime Minister’s Brexit negotiations may result in an agreement, but that may not be approved by the Westminster Parliament. Alternatively, the negotiations may fail to produce a deal. Should either of these eventualities occur, and nothing further happen, then from 29 March 2019 the UK will cease to be a member of the EU. Hence, the choice is between a deal and thereafter an exit from the EU, or no deal and exit from the EU. A group of MPs, MSPs and MEPs were of the view that both choices were less attractive than simply remaining in the EU. They wondered if the status quo could not simply be maintained by revoking the article 50 notice, prior to 29 March 2019. Accordingly, they brought a petition for judicial review, seeking a declarator specifying “whether, when and how the notification… can unilaterally be revoked”, and asked that the question be referred to the CJEU for a preliminary ruling. The Inner House has agreed to do that.

There are two points worth noting here. The first is that of legal “interest”, or “standing”. Lord Menzies observed that, while an MP had a clear interest in the answer to the question (an MP will be required to vote on any agreement that is reached with the EU), it was not quite so obvious why either an MSP or an MEP had an interest. Certainly, they have interest in the broad sense, in much the same way that any British citizen, or indeed any observer of the Brexit negotiations, has an interest. But it is not obvious that either of them has the necessary legal interest.

The second notable point is that in the Supreme Court case of R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61, the argument before the justices proceeded on the basis that the article 50 notice, once given, could not be withdrawn. The Supreme Court was content to proceed on that basis for the purposes of that case, although it specifically refrained from expressing a view on the point (see para 26). One can therefore immediately see that there is, at the very least, room for argument as to whether it is legally competent to withdraw the article 50 notice. Yet, the Westminster Government has made clear that withdrawal does not form part of its policy in relation to Brexit. Could it not therefore be said, with some force, that the point was academic or hypothetical? This argument found favour with the Lord Ordinary, and brings us to the heart of the Inner House’s judgment.

The prime function of the court

The Inner House noted that while current Government policy is not to revoke article 50, that policy may change. It is impossible to predict what will happen between now and 29 March 2019. One possibility is the notorious “no-deal Brexit”. Another is that MPs will require to vote on any Brexit deal that the Prime Minister reaches with the EU. To be able to cast their votes in a responsible manner, it is important for those MPs to know whether there is a third option, that of revocation of the article 50 notice.

Seen in this context, the judges observed, the legal competence of revocation was not “academic” or “hypothetical”. The court was not attempting to dictate to MPs what they should do, or what they should take into account when casting their votes. The court was simply performing its central function: that of declaring what the law is.

The Lord Ordinary had placed reliance on the dictum of Lord Justice Clerk Thomson in Macnaughton v Macnaughton’s Trs 1953 SC 387 at 392, that the courts are not a “debating club”, and should not be concerned with “hypothetical, premature or academic questions”. Yet Macnaughton was concerned with the interpretation of rights of succession in a will. In other words, it was a private law case that affected a small number of private individuals. By contrast, the present question concerning article 50 arose in the field of public law, and related to a constitutional issue that would affect countless individuals, companies and organisations. A narrow approach along the Macnaughton line was not consistent with the modern view in public law cases, set out in AXA v Lord Advocate 2012 SC (UKSC) 122, where the court is seen to exist for “the preservation of the rule of law”, and an applicant’s “interest” in a particular issue is more relevant than the applicant’s “right” to bring proceedings (AXA, per Lord Reed at 178).

The parameters of judicial review

Has Wightman moved the boundaries of judicial review? Certain dicta within the decision suggest this. In its final form, the petition contained few of the elements usually seen in judicial review petitions. There was no complaint of an erroneous or irrational decision, or an abuse of power. The petitioners did not seek reduction of decisions or letters. Rather, they merely sought the declarator mentioned above.

Readers will recall the decision in West v Secretary of Sate for Scotland 1992 SC 385, in which Lord President Hope set out the principles by which the competency of all applications to the supervisory jurisdiction of the court was to be determined. Chief among those was the consideration that “the sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires” (at 413).

In Wightman, Lord Drummond Young said that, while the request for guidance on the article 50 notice did not fall within the “traditional application of the supervisory jurisdiction, the underlying purpose is to ensure that those charged with voting on issues of vital importance to the United Kingdom are properly advised on the existing state of the law. That, in my opinion, falls squarely within the fundamental purpose of the supervisory jurisdiction” (para 68).

In his view, the “fundamental purpose” was to ensure that all acts of government are carried out within the rule of law. He would therefore have no hesitation in rejecting arguments based on “the detailed scope of previous descriptions of the supervisory jurisdiction, if they appear to stand in the way of the proper enforcement of the rule of law” (para 67).

The court does seem to suggest that a petition for judicial review does not need to comply with the strict requirements of West, if the underlying purpose is the proper enforcement of the rule of law. Yet, this position may not be so radical as it first appears, since it echoes the words of Lord Reed in AXA, mentioned above.

One imagines that the precise set of circumstances that arose in Wightman will not be commonplace. In the general run of judicial review applications, petitioners will continue to seek review and reduction of decisions on the basis of abuse of power or some such other irregularity. It is nevertheless heartening to know that the court will not allow the precise form of the application to stand in its way when it deals with the important issues of the day, when it goes about the business of fulfilling its prime function: that of stating the law, and ensuring its proper enforcement. It is respectfully submitted that the Wightman decision is an extremely enlightened one, of which Scotland and its supreme court should be justifiably proud.

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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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