Article 50: The third way

United Kingdom

UK Supreme Court refuses permission to appeal against decision 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. In September 2018, we wrote on the decision of the Inner House of the Court of Session in Scotland to make a reference to the Court of Justice of the EU (“CJEU”), seeking confirmation as to whether, when and how the UK’s notification to withdraw from the EU, made under Article 50 can be unilaterally revoked.

Following that decision, the UK Government sought permission to appeal this judgment to the UK Supreme Court. Permission was first refused by the Scottish court itself on 8 November 2018 and now, has also been refused by the UK Supreme Court.

This means that the CJEU will hear the reference of the Scottish courts, without any intervention of the UK Supreme Court first. The CJEU have expedited the case and are due to hear the reference on Tuesday 27 November 2018, as a full court with their answer potentially available before the end of the year.

This opens up at least the possibility of judicial confirmation at CJEU level that there is a third option for UK Members of Parliament, who will shortly require to vote on whether to accept the 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 in any parliamentary vote: (i) approve the negotiated agreement reached with the EU, (ii) reject the negotiated agreement and opt for a “no deal” Brexit or (iii) a potential third option, unilaterally revoke Article 50 and choose to stay within the EU, whether permanently, or temporarily pending a renegotiation of the UK’s future relationship with Europe.

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 seek 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 the deal before, 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 UK Supreme Court’s decision

With all eyes upon it, the UK Supreme Court determined the application for permission to appeal in two working days. It ultimately refused permission for relatively technical reasons. Under section 40 of the Court of Session Act 1988, the only basis on which an appeal against an unanimous order of the Scottish Inner House can be taken is a “final judgment”, which is means "a decision which… disposes of the subject matter of the proceedings on its merits".

The UK Supreme Court concluded that it was “clear” that the decision of the Scottish court here was not a final judgment, in either form or substance. The UK Supreme Court noted that it remains unclear what remedy the Court of Session will ultimately grant the Petitioners once the CJEU has provided its ruling: only then will there be a “final judgment” as envisaged under the 1988 Act.

Accordingly, the UK Supreme Court had no jurisdiction to grant permission to appeal and the reference to the CJEU will be heard on 27 November 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 the negotiated agreement reached with the EU, (ii) reject the 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 permanently, or temporarily pending a renegotiation of the UK’s future relationship with Europe.

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 has, once again, thrown 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.