In its recent judgment in Wightman and others v Secretary of State for Exiting the European Union  CSIH 62, the Court of Session has referred to the Court of Justice of the European Union (CJEU) the question of whether the UK can unilaterally revoke its notification of its intention to leave the EU Article 50 of the Treaty on European Union (TEU).
The petition was initially lodged on 19 December 2017 by a cross-party group of elected representatives including MPs, MEPs and MSPs. The petitioners sought a ruling from the CJEU to determine the question whether the Article 50(2) notification can be revoked unilaterally by the UK, without approval from the other EU member states, in advance of the expiry of the two year notice period.
Along with the existing options of either exiting the EU with or without an agreement, the petitioners in particular sought confirmation on whether there is a valid third option of revoking the notice with the effect of remaining in the EU. The petitioners argue that a definitive ruling on revocability is therefore necessary to enable them to make informed choices based on the options legally available.
By interlocutor in the Outer House of the Court of Session dated 8 June 2018 (see Wightman and others v Secretary of State for Exiting the European Union  CSOH 61), the Lord Ordinary declined to make a reference to the CJEU and refused the petition on the following three grounds:
- the issue is hypothetical as the UK Government had stated that it does not intend to revoke the notification;
- the subject matter encroached on Parliamentary sovereignty and was beyond the court's jurisdiction; and
- the court was not persuaded that the conditions for a reference to the CJEU had been met as the facts were not ascertainable and the issue was hypothetical.
The petitioners appealed the decision of the Outer House to the Inner House, by way of reclaiming motion.
In the meantime, the EU (Withdrawal) Act 2018 received royal assent on 26 June 2018. Under Section 13 of that Act, MPs will be asked to approve the withdrawal agreement negotiated by the government, as well as the broad outlines of any future trade deal with the EU. At present, if MPs withhold approval the effect will be for the UK to leave the EU without any deal. If the Article 50 notification is capable of revocation, then MPs may have the third option of remaining in the EU.
On 21 September 2018, the Inner House of the Court of Session allowed the reclaiming motion and agreed to the petitioners' request to make a reference to the CJEU under Article 267 of the Treaty on the Functioning of the EU, deeming it "necessary".
In reaching its decision, the Inner House stated as follows:
- In the face of section 13 of the European Union (Withdrawal) Act 2018, it was neither academic nor premature to ask whether it is legally competent to revoke the notification.
- The issue of revocability is uncertain in that it is the subject of a dispute, as demonstrated by the present litigation.
- The answer will have the effect of clarifying the options open to MPs when casting their (now inevitable) vote on whether or not to approve the withdrawal agreement. MPs therefore have an interest in seeing the matter resolved.
The Inner House has referred the following question to the CJEU with a request for an expedited procedure given the urgency of the issue:
"Where, in accordance with Article 50 of the TEU, 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 EU."
Given the current political climate, in our view it would take a lot for MPs to instruct the government to revoke the Article 50 notification (and there is the interesting issue of how to give legal effect to that instruction). However, it must be correct that MPs know whether or not that option is available to them when voting on the withdrawal agreement and future framework.
At this point we can say two things with certainty - the CJEU will need to be quick with its determination (something which it has acknowledged by applying the expedited procedure with a possible hearing on 27 November this year), and whatever determination it makes is sure to be controversial.