Appeal judges grant permission to proceed in legal challenge over revocability of Article 50

The Lord Ordinary, Lord Doherty had held that the issue was “hypothetical and academic” and therefore refused permission to proceed on the basis that the application had “no real prospect of success”, but the petitioners lodged a reclaiming motion challenging that decision.

The Inner House of the Court of Session has allowed the reclaiming motion and granted permission to proceed, having ruled that the petition did raise “a point of substance” which should be argued at a full hearing.

Preliminary reference

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young, heard that the petitioners, Andy Wightman MSP and others, seek a reference to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union to determine whether such revocation is lawful.

In the event of guidance being provided by the CJEU, the petitioners seek reduction of a letter from the respondent, dated 7 December 2017, and a declarator specifying the manner in which a notification of withdrawal can be revoked by the United Kingdom.

In refusing permission to proceed, the Lord Ordinary held that the UK Government’s policy was “clear”; that notification under Article 50.2 would not be withdrawn, and therefore there was no need to look further to determine what their policy was.

In these circumstances the issue, which the petitioners wished the court to determine, was “hypothetical and academic”.

Unresolved question

It was submitted by the petitioners that a ruling was required in order to “allow the democratic constitution of the UK to function properly and efficiently”.

The parties were not seeking an advisory opinion, but a ruling from the CJEU on an “unresolved point” of EU law which the court would be obliged to apply.

It was a matter which required to be “authoritatively resolved” in order to enable the petitioners to carry out their constitutional duties as members of their respective parliaments.

The respondent, on behalf of the Secretary of State for Exiting the EU, maintained that the petitioners had not demonstrated that they had a real prospect of success.

The issue here was hypothetical and academic as there was “no genuine dispute” about the proper construction of Article 50.2 or any reason for the court to entertain the issue of the unilateral revocability of a notice of withdrawal.

Permission to proceed

Allowing the appeal, the judges explained the test for permission for proceed, namely that there must be a “real prospect of success”, and concluded that the Lord Ordinary erred in holding that the petitioners had failed to overcome that threshold.

Delivering the opinion of the court, the Lord President said: “This petition has significant problems; notably those identified by the Lord Ordinary. It is not clear from the averments in the petition that the UK Government does have a stated policy on the competency of revoking the notification of withdrawal. The statements from the Secretary and Minister of State for Exiting the EU are, at best for the petitioner, ambiguous. Whether it is possible to review a Government’s ‘position’, especially an unstated one, is highly questionable. The purpose of having a CJEU, or domestic, ruling on whether a notification of withdrawal can be revoked is uncertain. There is no obvious legal requirement on a Government to respond to enquiries about what their understanding of EU law might be.

“Nevertheless, if this petition were shorn of its rhetoric and extraneous and irrelevant material and were reduced, after adjustment, to a manageable size which conformed to Lord Hope’s guidance in Somerville v Scottish Ministers, a case of substance, albeit not necessarily one which is likely to succeed, can be discovered. The issue of whether it is legally possible to revoke the notice of withdrawal is, as already stated, one of great importance. On one view, authoritative guidance on whether it is legally possible to do so may have the capacity to influence Members of Parliament in deciding what steps to take in advance of, and at the time of, a debate and vote on the European Union (Withdrawal) Bill. After all, if Parliament is to be regarded as sovereign, the Government’s position on the legality of revoking the notice may not be decisive.”

“Whether the CJEU will entertain a question of the type proposed is dependent upon whether this court considers that there is a genuine dispute requiring settlement (see Article 267 of the Treaty on the Functioning of the EU. That is the de quo of the petition itself. If this court sought a reference, the CJEU would be bound to reply to the questions asked.

“In short therefore, having regard to all the circumstances, the court is of the view that the Lord Ordinary erred in holding that there is no ‘real prospect of success’ in this petition, as that phrase has been explained above. There is a point of substance, albeit one heavily concealed by the averments, which should be argued in the normal way. The court’s decision, having heard full argument, may ultimately reflect the Lord Ordinary’s view, but that is for another day.”

Lord Carloway added: “The court will allow the reclaiming motion, recall the interlocutor of the Lord Ordinary dated 6 February 2018 and grant permission to proceed. The procedure to be followed is set out in the Rules of Court, notably RCS 58.11. It requires a procedural and a substantive hearing. For reasons which will be evident from this decision, there ought to be a period of adjustment to enable the petitioners to plead their case in the manner stipulated in Somerville v The Scottish Ministers. If the petitioners seek a Protective Expenses Order, they should enrol the appropriate motion to do so in the Outer House.”