The third way? Courts to ask CJEU if, and how, the UK’s notification to leave the EU under Article 50 can be revoked

Executive summary

There have been contradictory views as to whether, once issued, a notification under Article 50 of the Treaty of the European Union (“Article 50”) can be revoked, with Lord Kerr (the author of Article 50) in particular being clear in his view that it is revocable. The Inner House of the Court of Session in Scotland has ruled that a reference to the Court of Justice of the EU (“CJEU”) will be made, seeking an answer on whether, when and how the UK’s notification to withdraw from the EU, made under Article 50 can be unilaterally revoked. The reference will be sought on an expedited basis, with the hope being that the answer may be available by the end of 2018.

This important judgment opens up at least the possibility of judicial confirmation that there is a third option for UK Members of Parliament, who will shortly require to vote on whether to accept any agreement reached with the EU on the terms of the UK’s withdrawal. If the CJEU answers the reference in the affirmative – that Article 50 can be unilaterally revoked prior to 29 March 2019 – it would be clear that UK MPs would have an additional option available to them: (i) approve any negotiated agreement reached with the EU, (ii) reject any negotiated agreement and opt for a “no deal” Brexit; or (iii) the new potential third option, unilaterally revoke Article 50 and choose to stay within the EU.

Background to the decision

On Friday 21 September 2018, the Inner House of the Court of Session in Scotland handed down its judgment in the much-anticipated appeal brought in the matter of Andy Wightman MSP and others v Secretary of State for Exiting the European Union [2018] CSIH 62.

The petitioners in this case include members of the Scottish, UK and European Parliaments. They sought a declarator from the Courts on whether, when and how the notification made by the Prime Minister under Article 50, which will lead to the UK’s withdrawal from the EU on 29 March 2019, can be unilaterally revoked. The petitioners argue that an answer to this question can only be authoritatively given by the CJEU.

At first instance, the request for a reference to the CJEU was declined, with the Lord Ordinary ruling that the question was hypothetical, as the UK Government had stated it did not intend to revoke the notification made under Article 50. The petition was also refused on grounds that it encroached upon parliamentary sovereignty, was outwith the court’s jurisdiction and that the conditions for a reference had not been met, given the hypothetical nature of the issue.

Why does this matter?

Under the terms of section 13 of the European Union (Withdrawal Act) 2018 (the “Withdrawal Act”), parliamentary approval on the terms of any withdrawal agreement reached between the EU and the UK Government must be sought. If the UK Parliament declines to approve the terms of any deal reached, the UK will nonetheless leave the EU on 29 March 2019, in terms of Article 50. MPs currently face a stark choice: approve the terms negotiated with the EU to leave, or leave with “no deal”. The purpose of this case is to establish whether there is a third choice: to revoke the Article 50 notification, with the consequence that the UK stays within the EU after 29 March 2019. The petitioners wish to have a legally definitive ruling on whether this is possible, in order to enable MPs to make an informed choice, when it comes to voting.

The court’s decision

The Court unanimously allowed the appeal and will now make a reference to the CJEU, seeking an answer on whether, how and when Article 50 can be unilaterally revoked. The lead opinion in the appeal was delivered by Lord Carloway, the Lord President (Scotland’s most senior judge), with further concurring opinions given by Lord Menzies and Lord Drummond Young.

Addressing the question of whether the case is hypothetical, the Lord President noted that, subject to certain limits, the “principle of access to justice dictates that, as a generality, anyone, who wishes to do so, can apply to the court to determine what the law is in a given situation”. The Lord President observed that the date of 29 March 2019 is now “looming up”. MPs will require to vote soon on whether to approve any deal reached with the EU. It therefore appeared to the Court to be neither academic nor premature to ask whether Article 50 could be revoked in such circumstances. The fact that the UK Government has stated it does not intend to revoke Article 50 is of no real consequence, when it is ultimately a matter for the UK Parliament (not the UK Government) to decide.

The Court emphasised that it was not seeking to influence Parliament’s vote, but merely to declare the law: how MPs react to the answer the CJEU gives will be a matter for them.

What happens next?

Over the next fortnight, parties will liaise with the Court to agree the precise terms of the reference to the CJEU (a draft of the reference has been appended to the Inner House’s judgment). It is at least theoretically possible that the CJEU could decline the reference, although it seldom does so. The Lord President also observed within his judgment that it would be “disappointing” if a request for assistance from Scotland were to be declined by the CJEU in this case, given its important subject matter and the fact that references from Scotland to the CJEU have been comparatively rare (there have only ten references made from Scotland in the last 45 years). This is therefore, in all senses, a truly exceptional case.

On the assumption that the CJEU accepts the request, it will be made on an expedited procedural basis, in order that an answer is available in advance of the date of 29 March 2019 and the UK Parliament’s vote. The petitioners hope that it may indeed be available prior to Christmas 2018.

What might happen, following the CJEU’s decision?

It is possible that the CJEU will answer the question negatively: effectively ruling that the notification made under Article 50 cannot be withdrawn. If however the CJEU answers the reference in the affirmative – that Article 50 can be unilaterally revoked prior to 29 March 2019 – it makes it clear that UK MPs have a real third option available to them. Those options would be (i) approve any negotiated agreement reached with the EU, (ii) reject any negotiated agreement and opt for a “no deal” Brexit; or (iii) the new potential third option, unilaterally revoke Article 50 and choose to stay within the EU.

Whether such a third option (if indeed, it exists) would ultimately be used by MPs will depend on a myriad of factors, including the perceived attractiveness of the terms of any deal reached with EU by that point and the overarching political sentiments of the day.

The issue of Brexit therefore, once again, throws into sharp focus the respective roles of Parliament, the Executive and the judiciary in the UK constitution, with the role of the Courts being to decide and declare the law as it currently exists. Whatever the result of the reference to the CJEU, this case will have resulted in UK Members of Parliament being “properly and authoritatively advised as to the existing legal position” (per Lord Drummond Young, para 54). For that, many watching Brexit unfold across the UK and further afield, will be keenly interested in its result.