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UK Supreme Court

The application has been referred to three Supreme Court Justices - Lady Hale (President), Lord Reed (Deputy President) and Lord Hodge – who will form the decision panel.

Facts of the case

On 23 June 2016, the people of the United Kingdom voted by a majority at a referendum to leave the European Union. The UK Parliament enacted the European Union (Notification of Withdrawal) Act 2017 authorising the Prime Minister to notify under article 50(2) of the Treaty on the European Union (TEU) the UK’s intention to withdraw from the EU. On 29 March 2017, the Prime Minister gave notice under article 50(2) of the TEU (the ‘article 50 notification’) of the UK’s intention to withdraw from the EU.

The question which the petitioners seek to answer is “whether, when and how” the article 50 notification “can unilaterally be revoked” by the UK. They therefore seek (1) a preliminary reference to the Court of Justice of the European Union (‘CJEU’) under article 267 of the Treaty on the Functioning of the European Union (‘TFEU’) by way of expedited procedure, and (2) on return of that reference from the CJEU, and in light of the guidance given, a declarator answering the question.

The petition was lodged on 19 December 2017. At first instance in the Court of Session, the Lord Ordinary declined to make a reference to the CJEU and refused the petition on three grounds: (1) the issue was hypothetical as the UK government had stated that it did not intend to revoke the notification, (2) the matter involved an encroachment on Parliamentary sovereignty and was outwith the jurisdiction of the court, and (3) the conditions for a reference to the CJEU had not been met, as the facts were not ascertainable and the issue was hypothetical. The petitioners appealed.

The First Division of the Inner House allowed the appeal. The Lord President held that it is clear, in terms of the European Union (Withdrawal) Act 2018, that MPs will be required to vote on whether to ratify any agreement between the UK government and the EU Council. Thus, it is neither academic nor premature to ask whether it is legally competent to revoke the article 50 notification. Nor does a declarator by the court that it is competent to revoke the notification, suitably advised by the CJEU, infringe the boundaries of parliamentary privilege. In these circumstances, reference to the CJEU for a preliminary ruling under article 267 of the TFEU is necessary. Therefore, on 3 October 2018, the Court of Session sent a reference to the CJEU seeking a preliminary ruling on the following:

“Where, in accordance with Article 50 of the Treaty on the 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 applied its expedited procedure (as requested by the Court of Session) to the case. An oral hearing is fixed for 27 November 2018.

The appellant made an application for permission to appeal to the Supreme Court on 16 October 2018. The First Division of the Inner House refused the application on 8 November 2018.

The Secretary of State for Exiting the European Union now applies to the Supreme Court for permission to appeal.