Scotland: Judge rejects request to refer article 50 revocation question to European Court of Justice

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A judge in the Court of Session in Edinburgh ruled that the question being asked was “hypothetical” and that the conditions for a reference had not been met.

Preliminary reference

Following the June 2016 referendum in which UK voted to leave the European Union, on 29 March 2017 the Prime Minister, in a letter addressed to the European Council, gave notice under article 50(2) of the Treaty on the European Union (TEU) of the UK’s intention to withdraw.

Lord Boyd of Duncansby heard that the petitioners, Andy Wightman MSP and a cross-party group of MPs and MEPs, lodged a petition for judicial review against the Secretary of State for Exiting the EU, seeking a preliminary reference to the CJEU under article 267 of the Treaty on the Functioning of the European Union (TFEU); and for that reference to be sought by way of expedited procedure.

The petitioners were seeking an an answer to the following question: “Does article 50 of the Treaty on European Union allow that the article 50(2) TEU notice which has been sent by the United Kingdom Government on behalf of the United Kingdom notifying the Council of the intention of the United Kingdom to withdraw from the EU can, while the United Kingdom remains a Member State, be revoked unilaterally by the United Kingdom in good faith and in accordance with its own constitutional requirements, such that the United Kingdom remains a Member State of the European Union on its existing terms of membership?”

On return of that reference from the CJEU, and in the light of the guidance given by that court, the petitioners also sought a declarator from this court specifying whether, when and how the notification can unilaterally be revoked.

‘Authoritative ruling’

On behalf of the petitioners it was submitted that the question of law which arose was the proper interpretation of EU Treaties and that the issue was a matter of “very great constitutional importance”.

The Government’s position is that notification will not be withdrawn and Parliament would therefore have a clear choice; it could vote to accept the deal or move forward by exiting the European Union with no deal. However, individual parliamentarians may consider that the “better option” is to reject the deal on offer and vote instead for the UK to revoke the notice of withdrawal and thereby remain a member of the EU on its current terms. But it was a necessary prerequisite that the article 50 notification could be withdrawn.

It was submitted that there was no prior decision on the interpretation of article 50(2) and the only court or body that could give a “definitive answer” was the CJEU.

The additional parties, Tom Brake MP and Chris Leslie MP, contended that the question as to whether or not the article 50 notification can be unilaterally withdrawn was directly relevant to the decisions being faced by MPs in the coming months. The revocability of the article 50 notification was, so far as Parliament was concerned, “a real live question with practical consequences”.

Judicial review proceedings often arise in the context where no-one is certain as to the law and it was ruled that an “authoritative ruling” was required from the CJEU as a matter of “legal clarity” so that the issue could be resolved before 29 March 2019.

‘No genuine dispute’

The respondent argued that the issue raised in the petition was “hypothetical and academic” and that the petition itself was “incompetent”.

From the outset the UK Government has made it clear that its firm policy is that the notification under article 50 will not be withdrawn and has committed itself to holding a vote in Parliament on the final deal reached with the European Union as soon as possible after negotiations have concluded. Parliament will therefore have a clear choice: it can vote to accept the deal or move forward with no deal.

The petition was concerned with the lawfulness of a course of action which the UK Government has consistently stated that it will not take. It was submitted that the ordinary function of this court was not to answer hypothetical or academic questions or to provide “advisory opinions” and this case did not fall into either of the exceptions to the rule. Nor did the CJEU admit requests for “purely hypothetical or advisory rulings” - there had to be a genuine dispute and a ruling must be necessary for the effective resolution of that dispute.

Accordingly, the respondent contended that there was “no genuine dispute”; there was no relevant domestic law issue which required the matter to be referred to the CJEU; the factual basis had not been established so the CJEU would not be in a position to give a useful answer to the question submitted but would be ruling in the abstract; the present application did not meet the test for the court to make an advisory declaration; there was no determination by the CJEU necessary for the effective resolution of any dispute and there are no grounds for either CJEU or this court to entertain the question proposed by the petitioners.

‘Hypothetical and academic’

Refusing the petition, the court considered that the issue was hypothetical.

In a written opinion, Lord Boyd of Duncansby said: “What the petitioners are seeking is advice that, were a certain set of circumstances to come about, there is an alternative option that could be pursued given the political will to do so. In short the option of revocation of the article 50 notice is contingent on other factors rendering it a live possibility. At present it cannot be said that it is a live practical question.”

The judge noted that the court was being asked by a number of MPs to settle a legal dispute in the middle of the legislative process, adding that the court was not there to be used by one side or another to advance one side of a political debate.

He continued: “In my opinion that is a clear and dangerous encroachment on the sovereignty of Parliament. It is for Parliament itself to determine what options it considers in the process of withdrawing from the European Union. It is for Parliament to determine what advice, if any, it requires in the course of the legislative process.”

Lord Boyd did not accept that the answer to the question was necessary for the MPs to perform their Parliamentary duties, adding that there was no rule of parliamentary procedure preventing MPs from putting the option of revocation before the House of Commons.

The judge also considered whether the CJEU might accept the reference.

Lord Boyd noted that the proposed question was as much about the powers of the European Council in the event of a revocation as it was about the right of the UK under article 50.

“If the issue came before the CJEU it will have to consider not just the rights of a withdrawing member state under article 50 but also the rights of the European institutions and remaining member states,” he observed.

The opinion concluded: “The presumption is for the CJEU to accept references from the national court on the basis that it is primarily for the national court to determine whether it is necessary for the determination of a dispute before it. There are however a number of authorities which suggest that the CJEU will not engage in academic or hypothetical questions… Applying these principles I am satisfied that the question that is being asked is hypothetical. The facts upon which the CJEU would be asked to give an answer could not at this stage be ascertained, simply because they have not occurred.”

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