Jennifer Jack: Article 50 case offers a third path for Brexit

Jennifer Jack

Jennifer Jack, a member of the legal team that represented the MPs in Wightman and others, summarises the case.

Brexit is fraught with uncertainty – but there is now one thing we know without a doubt: The Court of Justice of the European Union (CJEU) has confirmed the UK is legally entitled to unilaterally revoke its Article 50 notice. In practical terms, this means that if the withdrawal agreement is not acceptable to Parliament, and ‘no deal’ is equally unacceptable, there is another path.

Last month, the Inner House of the Court of Session, which had referred the case to the CJEU, granted a formal declarator mirroring the terms of the CJEU ruling.

I was part of the legal team that took this case (C-621/18 - Wightman and Others preliminary reference) to Luxembourg, acting for MPs who sought a definitive answer to the question of whether withdrawal could be revoked without requiring agreement from the other 27 ­member states and, if so, if any ­conditions would apply.

From a public lawyer’s perspective, the judgment of the CJEU was hugely significant. The Scottish courts have referred questions to the CJEU on less than a dozen occasions.

Article 50 of the Treaty on European Union does not expressly say whether, once given, a notice of intention to leave the EU can be revoked during the two-year negotiating ­period. Only the CJEU could give a definitive ruling on correct legal interpretation.

In the face of strong opposition from the UK government, the Inner House made a preliminary reference to the CJEU to seek that ruling.

While most of the reporting focused on the Scottish petitioners who initiated the action (a group including MSPs, MEPs and an MP), there were also two English MPs seeking an answer from the courts. In April, Labour MP Chris Leslie and Lib Dem MP Tom Brake made contact with me and Bindmans LLP in London as they wanted to join those pursuing a definitive answer to the question being posed.

As Westminster MPs who would be voting in the ‘meaningful vote’, they thought it imperative to the democratic process and parliamentary sovereignty that all potential options were properly understood.

Critical to them, amongst the options that Parliament might vote on, was the question of whether it would be lawful for Article 50 to be unilaterally withdrawn (and if so on what conditions).

They instructed my firm, Harper Macleod, and Bindmans to try to ­persuade the Court of Session to allow them to join the case as directly affected ‘additional parties’. Despite opposition, our application was granted on 1 May. We had less than two weeks to ­prepare and lodge a written case and ­submissions and were allowed to make oral representations at the Outer House hearing on 22 May. Following initial refusal and appeal, the Inner House made its reference to the CJEU in ­October and asked for expedited procedure to apply in the hope of an answer being available to the MPs before the ‘meaningful vote’.

At the same time as dealing with further domestic appeal applications from UK government, the cross-border team of solicitors and counsel for the MPs prepared written observations for submission to the CJEU, then represented the MPs at the CJEU hearing on 27 November.

Strong objections were made throughout the case that it was academic and courts should not interfere in political matters. Lawyers are well-accustomed to having their legal arguments challenged, however, seldom are they subject to the level of contemporaneous scrutiny from the public and academia seen in this case. In such a high-profile case, having our legal arguments upheld and receiving confirmation that MPs are entitled to have questions of law answered, was a source of professional satisfaction.

Far from undermining the ­sovereignty of Westminster, the judgment clarifies the available lawful options available to ­parliamentarians and reaffirms that the final decision on what is in the UK’s national interest lies with the UK alone.

Having been a barely reported side-note, the case became headline news at one of the most remarkable times in the UK’s recent history. Even before the Inner House’s formal declarator reflecting the terms of the CJEU’s ruling, the case had achieved clarity for everyone involved in the decision-making process over Brexit that unilateral revocation is a lawful option.

The case highlights the importance of bringing cases to court in furtherance of the rule of law – and I will watch with interest to see what parliamentarians ultimately do with the information this case has given them as they continue to debate Brexit.

Jennifer Jack is a partner at Harper Macleod. This article first appeared in The Scotsman.

Tags: Brexit

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