Last week the Scottish Court of Session agreed to make a reference to the Court of Justice of the European Union in Luxembourg to determine whether the UK’s notice that it is leaving the EU under Article 50 can be cancelled.

The case, formally known as Wightman & Others v Secretary of State for Exiting the European Union, has a fairly tortuous procedural history. Initially permission to proceed with the case was refused. This was overturned on appeal. The case proceeded but was refused on its merits by the Outer House (the Scottish equivalent of the High Court). This has now been overturned on appeal to the Inner House (the Scottish equivalent of the Court of Appeal).

In early 2019, the UK Parliament will be required to approve or disapprove the withdrawal agreement reached between the UK Government and the EU.  In Wightman the court was being asked whether, when and how the Article 50 notification can unilaterally be revoked to clarify whether Parliament faces either:

• a binary choice (described by the Inner House as “stark” [7]) between accepting the deal reached with the EU or proceeding with no deal; or
• a multifaceted choice where unilaterally revoking the Article 50 notice, which would allow the UK to remain within the EU on the same terms presently in place or allow further time to re-negotiate a more favourable deal, is a viable option.

In the Outer House Lord Boyd refused the invitation to get involved in what he described as “the most contentious and political debate of our time” [62] on the basis that:

1. The question of whether notice under Article 50 can be unilaterally revoked by the UK is hypothetical as the UK Government has no intention of revoking the notice. There is no live practical question requiring an answer from the court;
2. Answering the question would be “a clear and dangerous encroachment on the sovereignty of Parliament”[58];
3. The Luxembourg court is likely to reject the reference as inadmissible anyway as the relevant facts are not yet known and the issue is academic and hypothetical.

On appeal, the Inner House has disagreed.

A hypothetical question?

Lord President Carloway, issuing the leading judgement of the Inner House, takes as his starting point the principle that it is the “fundamental function” of the courts to provide rulings on what the law is and how it should be applied, noting that:

“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 court must issue that determination publicly.” [21]

For practical reasons there are limits to the general right to a legal ruling.  The question must be real and not theoretical. The person raising the action must have a real interest to raise it. There must be someone presently existing who has a true interest to oppose the action. However the default must be that the issue can be decided.

The Lord President rejects the suggestion that the question of whether the Article 50 notice can be unilaterally revoked is not a live practical question:

“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. If no other proposal is proffered, a vote against ratification will result in the UK’s departure from the EU on 29 March 2019; a date which is looming up. It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU. The matter is uncertain in that it is the subject of a dispute; as this litigation perhaps demonstrates. The answer will have the effect of clarifying the options open to MPs in the lead up to what is now an inevitable vote” [27]

In his concurring opinion Lord Drummond Young goes so far as saying any suggestion that the issue anything other than of great practical importance is “manifestly absurd” given that 29 March 2019 is fast approaching and:

“If the rights and powers of interested parties cannot be determined before that date, the country, and its legislature and executive, will be, metaphorically, sleepwalking into the consequences. That is plainly an impractical and undesirable result.” [59]

The 2018 Act had not been enacted when the Lord Ordinary issued his decision in June 2018. The fact that, under that Act, MPs are required to approve the withdrawal agreement seems to have heavily influenced the decision of the Inner House that the issue is not (or at least no longer) hypothetical.

A dangerous encroachment on Parliamentary sovereignty?

On the issue of Parliamentary sovereignty, the Lord President highlights that:

“The court is not advising Parliament on what it must, or ought to, do. It is not otherwise seeking to influence Parliament’s direction of travel. It is merely declaring the law as part of its central function. How Parliament chooses to react to that declarator is entirely a matter for that institution.” [28]

There is therefore no encroachment on Parliamentary sovereignty. Political controversy cannot absolve the court from its duty to consider and answer legal questions. As noted by Lord Drummond Young in his concurring opinion:

“To state what the existing law is, or how it applies, does not involve any interference with free speech in Parliament; Members of Parliament are free to comment as they wish on the court’s opinion. Nor does the court’s opinion compel Members of Parliament to vote in any particular way; they are free to vote as they wish, taking account of the opinion or ignoring it as they think fit. Nor does the court’s opinion involve interference with or criticism of the legislature. It is simply a statement of the existing law, which is precisely the constitutional function of the courts.” [64]-[65]

Only the courts can give authoritative guidance on the meaning and application of the law and it is entirely appropriate for them to do so.

Will Luxembourg accept the reference?

The Inner House seem to think so, due to the presumption of relevance when a national court makes a request for a ruling from the Luxembourg court, the rarity of reference to Luxembourg from Scottish courts, and the typical focus of European Union law on practicality and effectiveness. In any case, the Inner House suggests that the question of admissibility is for the Luxembourg court to decide and does not justify a refusal to make the reference.

Comment

After a long fight, it looks like the question of whether Brexit can be cancelled will be decided once and for all by the Court of Justice of the European Union. This will allow MPs to make a well informed choice during the vote on the withdrawal agreement (assuming there even is one!). However it is not yet the end of the road.

The Luxembourg court could still refuse to make a decision, disagreeing with the Inner House’s assessment that the question is not hypothetical and that a ruling is necessary. The general consensus appears to be that this is unlikely. However it is still possible. If the Luxembourg court accepts the reference, we will get an answer to the question “Can the Article 50 notice be unilaterally revoked?” However it remains to be seen what that answer will be. There are cogent arguments on both sides of the debate; for a detailed discussion of the arguments this post on the UK Constitutional Law Association blog is hard to beat.