Scottish judge refuses politicians’ request for judicial review of Article 50 policy

A cross-party group of members of the Scottish, UK and European parliaments who sought judicial review of the UK Government’s policy that the United Kingdom’s notification under Article 50(2) of the Treaty of the European Union will not be withdrawn have been refused permission to proceed.

Lord Doherty in the Court of Session in Edinburgh, Scotland’s supreme civil court, described the issue as “hypothetical and academic” and therefore held that the application had “no real prospect of success”.

Lord Doherty (pictured) heard that Green MSPs Andy Wightman and Ross Greer, along with SNP MEP Alyn Smith and MP Joanna Cherry, and Labour MEPs David Martin and Catherine Stihler, argued inter alia that as “a matter of law” the UK could “unilaterally withdraw” the Article 50(2) notification before 29 March 2019.

The petitioners also argued that as a matter of fact the UK Government’s claim that it has never taken any position on whether the notification may be withdrawn unilaterally was “inconsistent “with statements made in parliament by the respondent, the Secretary of State for Exiting the European Union David Davis, and by another Minister, Lord Callanan.

Under reference to the same parliamentary statements the petitioners maintained that the “true position” of the Government was that the notification cannot legally be revoked unilaterally” by the UK, and that therefore there was a “dispute” between the petitioners and the Government as to the “correct interpretation” of Article 50(2) which only the Court of Justice of the European Union (CJEU) could determine authoritatively.

The primary remedy which the petitioners sought was that the court should make a preliminary reference to the CJEU under Article 267 of the Treaty on the Functioning of the European Union (TFEU), and that the reference be sought by way of the CJEU’s expedited procedure.

Refusing permission to proceed, the judge ruled that the application’s prospect of success fell “very far short of being a real prospect”.

In a written opinion, Lord Doherty said: “In my view the Government’s stated policy is very clear. It is that the notification under Article 50(2) will not be withdrawn. This is not a case where it is necessary to examine statements in Parliament in order to ascertain or identify Government policy. Nor do I think that in the circumstances it is possible or legitimate to do so without breaching Parliamentary privilege.

“In any case, looked at in context, in my opinion the statements founded upon do not in fact support the contention that the rationale of the policy is a belief that unilateral withdrawal is not an available legal option.”

The judge did not accept the submission that the respondent’s policy meant that the Government considered it would be entitled to refuse to comply with any legislative instruction which conflicted with it.