Graham Horn

In December 2017, a judicial review was raised at the Court of Session by Andy Wightman, MSP & Ors, seeking an answer to the question of whether the UK government’s notice of intention to withdraw from the European Union in terms of Article 50.2 TEU could be revoked by the UK unilaterally.

At first instance, Lord Doherty refused permission to proceed with the petition on the basis that the question was academic and hypothetical (i.e. there was no judicially reviewable act).

On appeal, the court allowed permission for the petition to proceed on the basis that there was a kernel of a case in the petition, though not necessarily one which would be successful. On that basis, the court held that Lord Doherty had been wrong to refuse permission.

The petition was allowed to proceed to a full hearing before Lord Boyd. Ultimately, Lord Boyd refused the petition. In doing so, the court considered three questions:
1. Was the question asked in the petition purely academic and hypothetical?
2. Did the petitioners’, and the additional parties’, reliance on statements made in parliament raise any issues regarding parliamentary privilege?
3. Would the Court of Justice of the European Union (‘CJEU’) have been likely to accept a reference if one had been made by the court?

Question 1

The UK government’s position is that they have no plans to withdraw the notification, but that Parliament will be given a ‘meaningful’ vote on the issue. Parliament will have a choice between accepting the deal negotiated with the EU, or exiting the EU without a deal. The petitioners argued that it was not within the UK government’s gift to restrict Parliament’s choices in this manner.

The petitioners argued that, if MPs thought it better to seek to keep the UK within the EU following the negotiations, an answer from the CJEU to the question asked in the petition would be of paramount importance. Only the CJEU could answer the question, and as such a reference should be made.

Ultimately, Lord Boyd found that the question was academic and hypothetical. He noted that the UK government’s position had been consistent that it would not revoke the notification, and that there was presently no live proposal to revoke the notification. There would require to be a significant change of circumstances to alter that position.

Lord Boyd formed the view that, what the petitioners wished advice on was, were a certain set of circumstances to come about, that there is an alternative option for Parliament. Lord Boyd noted that revocation of the notification was contingent on other factors rendering it a live possibility. The court held that, at present, there was no live practical question for it to answer.

Question 2

Lord Boyd noted that issues regarding parliamentary privilege, and indeed parliamentary sovereignty, arose given the petitioners’ and additional parties’ reliance on statements made in Parliament as the basis of the argument that the UK government was misdirecting itself in law.

The court noted that there was no challenge to the rule of law, nor was the court being asked to rule on the validity of an Act of the UK or Scottish Parliament. The court was being asked to answer a question raised by MPs which arose as a part of the legislative process. Lord Boyd formed the view that the petitioners ultimately wanted judicial support for parliamentary consideration of the option of the UK staying within the EU.

In the circumstances, Lord Boyd found this to be a clear and dangerous encroachment on the sovereignty of Parliament. He noted that it was for Parliament, and Parliament alone, to determine what options it considers and what advice, if any, it required.

Question 3

This question is largely speculative. Lord Boyd accepted the premise set out by the petitioners that the court would only know if a reference would be accepted once it had been made. However, Lord Boyd noted that the court could not simply make a reference and hope it would all be okay.

It seemed to the court that the petitioners contended that article 50 allowed for the member state to revoke its notification unilaterally before it ceases to be a member. It would then continue as a member of the EU as if no notification had ever been made. This presupposes that EU institutions have no functional role in the process.

Lord Boyd noted that the position may not be so simple. Any revocation would need to be addressed to the European Council, who would then have to consider their response. The EC may decide that it has no discretion, or it may, for example, wish to apply certain conditions.

In any event, the court considered that the context and facts of any revocation are not known. The CJEU would have to answer a hypothetical without any of the necessary background information to allow it to properly determine matters. In the circumstances, the court considered that the conditions required for a reference had not been met.

Comment

Aside from being a blow to Remainers, Lord Boyd’s judgment, and indeed that of Lord Doherty in the first instance, and the appeal, is a keen reminder of the scope of judicial review to any prospective petitioners. The court will only consider live and practical questions and disputes. The judicial review process is not a forum for engaging in academic and hypothetical debates, and the court has set that out very clearly in this case.

Graham Horn is a senior solicitor at MacRoberts