Case C-621/18 Wightman and others – Decision of the European Court of Justice

The European Court of Justice has today ruled in Case C-621/18 Wightman and others that the United Kingdom may, if it chooses to, unilaterally revoke its notification of intention to withdraw from the European Union.

This ruling of the Court affirms both the sovereignty of the United Kingdom as a nation, and the sovereignty of the UK Parliament.

Parliament can instruct the Government either to continue with the current negotiations around the UK’s withdrawal, or to bring an end to that process and keep the UK in the EU on the basis of its present membership deal.

This means that it is open to Parliament, if so minded, to “call off Brexit” so that the UK stays in the EU on its existing terms.

This would involve the UK keeping the Pound, maintaining its border controls, and holding on to its current EU budget rebate, while continuing to benefit from frictionless and tariff-free trade within the European Union and profiting from the free trade deals which the EU is able to conclude, from a position of world market strength, with third countries outside the EU.

It also means that British nationals would retain all the additional rights that come with their being EU citizens, including the rights to live and work in, receive healthcare from, and retire to, the rest of the EU.

In so ruling, the Court of Justice rejected the arguments of the two main EU institutions – the Council of Ministers and the European Commission – that the consent of all the other Member States would be needed for any revocation of the UK’s withdrawal to be effective.

Instead, the Court ruled that any choice to stay in the EU was for the UK alone. This could be done at any time, while the Treaties still applied to the UK (whether in the two year period from initial notification or in any extension of this period agreed with the European Council).

All that would be required would be a decision to remain, taken in accord with the UK’s constitutional requirements and then duly notified to the President of the European Council.

This judicial review was brought by a cross-party group of elected politicians from constituencies in Scotland. They wanted to know whether they had the option of voting for the UK staying in the EU, if they thought that that course offered better protection for their constituents than the UK leaving the EU on the basis of the Government’s withdrawal deal.

The case was taken by them before the Court of Session in Edinburgh, which referred the question of EU law which they had raised to the European Court of Justice for its guidance. The UK Supreme Court rejected an attempt by the UK Government to block this reference. The matter now comes back to the court in Scotland for its final ruling.

The Scottish politicians – Andy Wightman MSP, Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP, and Joanna Cherry QC MP – were supported throughout this case by Jolyon Maugham QC, director of the Good Law Project, who organised crowd funding support.

They have been represented at every stage in this case by Ampersand’s Aidan O’Neill QC who was instructed as leading counsel by Elaine Motion, Chairman of the Edinburgh law firm, Balfour + Manson LLP. He was assisted by David Welsh, Advocate and, before the European Court of Justice in Luxembourg, also by Maya Lester QC and Professor Piet Eeckhout.

The press release from the Court of Justice of the European Union can be found here and full decision here.

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Brexit case Wightman – AG Opinion proposes Article 50 TFEU notification of the intention to withdraw from the EU can be revoked unilaterally under certain conditions

Advocate General Campos Sánchez-Bordona issued his Opinion on 4th December 2018 in the so called “Brexit case” C-621/18 Wightman and Others v Secretary of State for Exiting the European Union. He proposes that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU. That possibility continues to exist until such time as the withdrawal agreement is formally concluded.

Lead by Ampersand’s Aidan O’Neill QC the Petitioners (various MSPs, MPs and MEPs), at the request of the Court of Session, Inner House, First Division asked the Court of Justice whether a Member State which has notified the European Council of its intention to withdraw from the EU in accordance with Article 50 TEU may unilaterally revoke that notification and, if so, subject to what conditions. The case was heard on 27 November 2018 by a Full Court of the CJEU – 27 judges, including Judge Chris Vajda from the UK, and chaired by the President of the CJEU, Judge Koen Lenaerts. The convening of a Full Court is unprecedented for a preliminary reference from a national court and shows the importance with which the CJEU regards this case.

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be delivered on 10 December 2018.

As the UK Parliament has to give its final approval, both if a withdrawal agreement is reached and in the absence of that agreement, various members of that parliament consider that if the notice of the intention to withdraw were revocable, this would open the possibility for the UK to remain in the EU in the face of an unsatisfactory Brexit. The Scottish court appears to adopt that position, reasoning that the Court of Justice’s answer will have the effect of clarifying the precise options open to MPs when casting their votes.

The UK Government contends that the question referred for a preliminary ruling is inadmissible, given that it is hypothetical and merely theoretical, since there is no indication that the UK Government or Parliament are going to revoke the notification of the intention to withdraw.

In today’s Opinion, Advocate General Manuel Campos Sánchez-Bordona considers that none of the conditions which, according to the Court’s case-law, govern whether a reference for a preliminary ruling should be declared inadmissible, are satisfied. According to the Advocate General, the dispute is genuine, the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute. He adds that the power to interpret Article 50 TEU definitively and uniformly is that of the Court of Justice which must carry out considerable interpretative work in order to determine whether or not that article allows the notification of the intention to withdraw to be revoked unilaterally.

In answer to the question from the Scottish court, the Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

The Advocate General interprets Article 50 TEU, having recourse, with regard to what is not expressly provided for in that article, to the relevant provisions of the Vienna Convention on the Law of Treaties on which Article 50 TEU is based. Pursuant to Article 68 of that convention, notifications of withdrawal from an international treaty may be revoked at any time before they take effect.

The Advocate General emphasises that withdrawal from an international treaty, which is the reverse of a treaty-making power, is by definition a unilateral act of a State party and a manifestation of its sovereignty. Unilateral revocation would also be a manifestation of the sovereignty of the departing Member State, which chooses to reverse its initial decision. The Advocate General deduces from his systematic analysis of Article 50 TEU various reasons in favour of the notification of the intention to withdraw being unilaterally revocable. First, the conclusion of an agreement is not a prerequisite for the withdrawal to be completed. Secondly, Article 50(2) TEU states that a Member State which decides to withdraw is to notify the European Council of ‘its intention’ — and not of its decision — to withdraw, and such an intention may change. Thirdly, the unilateral nature of the first phase of the procedure under Article 50 TEU, in which the Member State decides to withdraw from the EU in accordance with its own constitutional requirements, is projected onto the subsequent phase (of negotiating the terms of its withdrawal with the EU institutions), in such a way that if the withdrawal decision is revoked in accordance with the departing Member State’s constitutional procedures, its constitutional foundation will disappear. Lastly, the rejection of revocation would in practice entail the forced exit from the EU of a State which, according to the Court of Justice’s recent case-law,2 continues to be an EU Member State in all respects. It would be illogical to force that Member State to withdraw from the EU in order to then have to negotiate its accession. In the Advocate General’s view, the legal acts adopted by reason of the negotiations are measures concerned with the negotiation or agreements adopted with a view to the future withdrawal, and do not preclude the notification of the intention to withdraw from being unilaterally revoked.

The Advocate General states that Article 50 TEU is an expression of the principle of respect for the national identities of the Member States, in allowing them to withdraw if they consider that that national identity is incompatible with membership of the EU. In his view, there is no reason that, conversely, that Member State may not link its identity to its integration into the EU. In the view of Mr Campos Sánchez-Bordona, not placing obstacles in the way of the continued EU membership of a Member State that decides to leave the EU, but then changes its stance, in accordance with its constitutional requirements, and wishes to continue being a member, is an especially appropriate interpretative approach, which accords with the objective of advancing the process of integration. That approach is, in addition, the most favourable to the protection of the rights acquired by EU citizens, which the withdrawal of a Member State will inevitably restrict.

However, that possibility of unilateral revocation is subject to certain conditions and limits. First, like the notification of the intention to withdraw, the unilateral revocation must be notified by a formal act to the European Council. Secondly, it must respect national constitutional requirements. If, as is the case in the UK, prior parliamentary authorisation is required for the notification of the intention to withdraw, it is logical that the revocation of that notification also requires parliamentary approval. There is also a temporal limit on the possibility of revocation, since revocation is possible only within the two-year period that begins when the intention to withdraw is notified. The principles of good faith and sincere cooperation must also be observed, in order to prevent abuse of the procedure laid down in Article 50 TEU.

The Advocate General rejects the contention that Article 50 TEU only allows the possibility, put forward by the Commission and the Council, of a revocation following a unanimous decision of the European Council. In his opinion, a revocation by mutual consent of the departing Member State which changes its position and the EU institutions with which it is negotiating its withdrawal is possible. However, this would not prejudice unilateral revocation, which the departing Member State always maintains under Article 50 TEU. On the other hand, the Advocate General considers that to make the possibility of revocation conditional upon the adoption of a unanimous decision of the European Council would be incompatible with Article 50 TEU. To accept that the European Council, acting by unanimity, should have the last word on the revocation increases the risk of the Member State leaving the EU against its will, since the right to withdraw from (and, conversely, to remain in) the EU would no longer be subject to the control of the Member State, its sovereignty and its constitutional requirements. In those circumstances, it would suffice for one of the remaining 27 Member States to oppose the revocation in order for the will of the Member State that has expressed its desire to remain in the EU to be frustrated.

Link to the Advocate General Advocate General Campos Sánchez-Bordona’s Opinion can be found here.

Updated 6 December 2018 to include reference to the date the judgment will be delivered

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Court of Justice of the European Union set to hear Case C-621/18 Wightman

Ampersand’s Aidan O’Neill QC will lead the Petitioners in a full court of the Court of Justice of the European Union (“CJEU”) on 27th November 2018 in relation to the case of Case C-621/18 Wightman.

The hearing concerns an interlocutor dated 21st September 2018 of the First Division of the Inner House of the Court of Session, seeking a preliminary ruling by the CJEU on the interpretation of article 50 was necessary to enable the Court of Session to give judgment, and invited the parties to make submissions on a draft request for such a ruling. Having received and considered those submissions, in their interlocutor dated 3rd October 2018 the First Division requested the CJEU to give a ruling on the following question:

“Where, in accordance with article 50 of the Treaty on European Union, 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 European Union?”

The CJEU has confirmed the hearing will be open to the public, but, in line with Court rules, will not be livestreamed and no transcript will be available. The hearing is scheduled for one day.

The First Division’s judgment of 21st September 2018 is available on the Scottish Courts and Tribunals Service website. The Court of Session will consider the CJEU’s advice before issuing a final ruling.

Update – following the hearing the CJEU advised that Advocate General Campos Sánchez-Bordona will deliver his opinion on 4th December 2018.

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UKSC refuses permission to appeal in the matter of Secretary of State for Exiting the European Union v Wightman and others

Having considered submissions from the parties ‘on paper’, in the usual way, the Supreme Court of the United Kingdom has refused permission for the Secretary of State for Exiting the European Union to appeal.

Explanation of the Court’s decision

1. The Secretary of State for Exiting the European Union seeks the permission of this court to appeal against interlocutors (orders) of the First Division of the Inner House of the Court of Session dated 21 September and 3 October 2018.
2. Under section 40 of the Court of Session Act 1988, the only basis on which an appeal against the interlocutors in question might be taken would be if they constituted “a decision constituting final judgment in any proceedings”. “Final judgment” is defined as meaning “a decision which, by itself or taken along with prior decisions in the proceedings, disposes of the subject matter of the proceedings on its merits”. The question therefore arises whether, as the Secretary of State contends, the interlocutor dated 3 October 2018 constituted final judgment in these proceedings as so defined. If it did not, it follows that this court has no jurisdiction to hear an appeal.
3. These proceedings concern the notification given on 29 March 2017 of the United Kingdom’s intention to withdraw from the European Union, in accordance with article 50 of the Treaty on European Union. The present respondents, who include Members of the Scottish, United Kingdom and European Parliaments, have petitioned the Court of Session to declare “whether, when and how the notification … can unilaterally be revoked”.
4. On 6 June 2018 the Lord Ordinary refused the petition. In their interlocutor dated 21 September 2018, the First Division of the Inner House allowed an appeal against that decision, rejected a number of objections by the Secretary of State, decided that a preliminary ruling by the Court of Justice of the European Union (“the CJEU”) on the interpretation of article 50 was necessary to enable the Court of Session to give judgment, and invited the parties to make submissions on a draft request for such a ruling. Having received and considered those submissions, in their interlocutor dated 3 October 2018 the First Division requested the CJEU to give a ruling on the following question:
   “Where, in accordance with article 50 of the Treaty on European Union, 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 European Union?”
5. It is clear that this interlocutor did not constitute a final judgment. Contrary to the Secretary of State’s contention, an interlocutor requesting a preliminary ruling is not “interlocutory in form but final in substance”, and the passage in Beattie v Glasgow Corporation 1917 SC (HL) 22, 24, on which the Secretary of State relies, is therefore not in point. The request to the CJEU did not in itself “dispose of the subject matter” of the proceedings: it remains to be seen what remedy, if any, the Court of Session will grant. That will remain the position even after the CJEU has made a ruling on the question referred. The purpose of the ruling is, as is stated in article 267 of the Treaty on the Functioning of the European Union, under which the preliminary ruling has been requested, “to enable [the national court] to give judgment”. As both this court and the CJEU have made clear, the preliminary ruling is merely a step in the proceedings pending before the national court: it is that court which must assume responsibility for the subsequent judicial decision (see, for example, Revenue and Customs Commissioners v Aimia Coalition Loyalty UK Ltd [2013] UKSC 15).
6. It will therefore remain for the Court of Session to give judgment in the light of the preliminary ruling, any relevant facts which it may find and any relevant rules of domestic law. It is only then that there will be a final judgment in the proceedings.

Full details on UKSC website here.

Ampersand’s Aidan O’Neill QC acts for the Respondents, instructed by Balfour + Manson LLP.

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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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