The article 50 case: how it happened

It all started back in autumn 2017. 

The Court of Justice of the European Union (CJEU) had never been asked this question, as no country had voted to leave the EU before. Our view was this was an important matter which only the CJEU could answer. This was needed to give clarity on precisely what options in the Brexit process were open to parliamentarians.

Why litigate?

With any issue of public law, you have to be sure you have strong legal arguments before proceeding. We thought we did.

Andy Wightman MSP was involved from the outset, and his focus – and that of the parliamentarians who joined him – was to get the question referred to the CJEU. Without a reference, there would be no answer and no clarity.

For the UK Parliament to revoke the article 50 notice, then find the other member states had to consent, would cause chaos and confusion. We argued this was a situation which could occur.

The UK Government position was that it would not revoke and our action was, therefore, purely hypothetical. At no point during the whole process did the Government state a position on the competency of revocation; indeed, before the CJEU, it said it did not have a position.

Our view was that Parliament could decide to revoke; this was a matter for Parliament, not Government.

The struggle for permission

We set out our position in a pre-action protocol, more often used in English law or the Commercial Court, and on 28 November 2017 a letter of intent went to David Davis, then Secretary of State at the Department for Exiting the European Union (Dexeu), and Lord Keen of Elie QC, Advocate General for Scotland. A year almost to the day later, we were in the CJEU for a hearing before a full panel of judges, but not before many twists and turns along the way.

We lodged the case at the Court of Session on 19 December 2017, asking it to refer the case to the CJEU on whether the article 50 notice could be revoked and on what terms.

A number of other petitioners had joined Andy Wightman: fellow Green MSP Ross Greer; SNP MP Joanna Cherry QC; Christine Jardine, Liberal Democrat MP (later replaced by Jolyon Maugham QC); and MEPs David Martin and Cathy Stihler (Labour) and Alyn Smith (SNP).

At the permission hearing on 2 February 2018, Dexeu argued that permission to bring the case should not be granted. The case was continued to be heard in the Outer House on 6 February. 

Lord Doherty found for Dexeu and said we had failed to meet even the lowest hurdle in terms of taking the case forward: [2018] CSOH 8. In essence, he considered the issue hypothetical and academic as neither Parliament nor Government had indicated it wished to withdraw the notice. The stated Government position was clear, and taking all issues into account, the court considered the “prospect of success falls very far short of being a real prospect”.

This was a blow, but having experienced these before, we regrouped. We felt our argument was justified in law and decided to appeal. We were back in court very quickly (15 February) and the appeal was set down for 21 February.

At a full hearing before three Inner House judges, we restated our case and asked for permission for the substantive arguments to be heard. The Government opposed this, but on 20 March we won permission: [2018] CSIH 18.

Constitutional questions

The substantive arguments were heard in the Outer House on 22 May, by which time two additional parties, Liberal Democrat MP Tom Brake and Labour MP Chris Leslie, had come on board.

At the hearing, the Government claimed once again that our case was hypothetical and academic. We had a very fair hearing, but on 8 June, Lord Boyd of Duncansby found for the Government: [2018] CSOH 61. Again, the court considered the matter hypothetical and that it was, to some extent, speculative whether the CJEU would accept a reference. It also found the subject matter encroached on parliamentary sovereignty and that the use of parliamentary materials breached parliamentary privilege.

We analysed the opinion and discussed our prospects of ultimate success. We believed our arguments remained strong and appealed to the Inner House once again – asking for the case to be dealt with urgently. 

On 4 July, the urgency was accepted and a timetable set out, with a substantive hearing set for 15 August. 

The hearing started in an interesting way, as the Lord President immediately requested a draft reference or references (ideally agreed between parties), as that would be required whatever the court’s judgment. The other judges, Lord Drummond Young and Lord Menzies, followed up with fundamental constitutional questions. It was a very detailed hearing, looking at all the substantive arguments again.

The decision came out on 21 September. Three opinions were issued, all in our favour: [2018] CSIH 62, discussed by Geoffrey Mitchell QC at Journal, November 2018, 16. The issue of revocation was neither hypothetical nor premature; the answer would clarify the options open to parliamentarians; there would have to be a vote and it was a matter for Parliament to decide on revocation, not the UK Government. 

Pronouncing a declarator would not infringe on parliamentary sovereignty. The court was one of the three pillars of the state and its fundamental function was to rule on what the law was and how it should be applied. That was the function of the courts alone. Neither Parliament nor Government should interfere with the courts’ performance of their constitutional duties.

The court also held that parliamentary privilege had not been breached. It further commented that given the few references made to the CJEU, it would be disappointing if a request was met with a negative response. The answer to the question, for the petitioners at least, was of obvious national importance.

Preparing for the main event

We had already provided an agreed draft reference, as requested by the Lord President. The Inner House finalised the wording on 3 October.

The following day, the CJEU confirmed it had received the reference, and on 5 October it set a hearing date of 27 November, all documents to be lodged by 30 October.

Each party was told to limit its submissions to 12 pages. When we completed ours, I discovered to my horror that the signature block took us on to 13 pages. I had a flight booked and had to ask a colleague to check urgently that this was acceptable. The court told her 12 pages was “just guidance”!

The Government also lodged submissions, as did the two MPs as additional parties, the European Council (representing all member states) and European Commission.

We were now able to state our clients’ full position for the first time – that the UK Parliament could revoke the article 50 notice unilaterally, without the consent of the other member states.

Supreme Court block?

As we approached the hearing, the Government asked the Court of Session for leave to appeal to the UK Supreme Court. This was refused by the Inner House on 8 November. The court considered the matter one of great constitutional significance, but as the CJEU had accepted, expedited and fixed a hearing prior to the application being lodged, and to grant leave would render the reference (and the petition) academic, permission to appeal was refused.

However, the Government then applied for permission direct to the Supreme Court, lodging papers on the morning of 12 November. Aidan O’Neill QC and David Welsh, advocate, had our response ready so I could lodge it the same afternoon.

The Supreme Court decided to deal with it through written submissions, and rejected the UK Government’s application on 20 November: www.supremecourt.uk/news. This was on the basis that the Inner House interlocutor was not a final one and as it had refused leave, it was not competent to seek leave directly from the Supreme Court.

Full court theatre

The following day, the ECJ confirmed the hearing would take place on 27 November, before the full court. This was unprecedented. 

At the hearing, all parties – the petitioners, additional parties, UK Government, European Council and European Commission – each had 15 minutes, although we and the additional parties had requested (and been granted) an extra five minutes.

After a break, the Judge-Rapporteur and the Advocate General, then the full bench, had the opportunity to ask questions of all parties. Most questions were directed to the Council and the Commission. We saw this as a positive. There was no negativity from the bench towards the argument for the petitioners.

Lord Keen, for the UK Government, was asked what its position was on the question of revocability. The Government had no position, he answered, to an audible intake of breath in a courtroom packed with around 400 people.

All parties then had five minutes for final submissions, and the court rose.

It was an extremely stimulating day, with an atmosphere of excited expectation in the courtroom. History was being made, whatever the final judgment.

At last – an answer

And then we waited… but not for long.

One week later, on 4 December, Advocate General Campos Sanchez-Bordona issued a beautifully written opinion which clearly supported our argument. We were hopeful the CJEU, as it usually does, would support and develop the Advocate General’s line, and when that happened, on 10 December, it was a joyous feeling.

The court held (case C-621/18) that a member state that had given notice under article 50 was free to revoke it unilaterally, for as long as a withdrawal agreement had not entered into force or, if no agreement had been concluded, for as long as the two-year period of notice under article 50, and any extension, had not expired. Any revocation would have to be decided following a democratic process in accordance with national constitutional requirements, and be by unequivocal and unconditional written notice to the European Council.

It was almost surreal that the highest court in Europe had looked at – and supported – those arguments we had believed in all along. We had the clarity we had been looking for. This was not a hypothetical argument; it was a very real situation.

Even if the CJEU had gone against our arguments, it would still have provided an answer, which is fundamentally what we were looking for. However, for it to support our view was truly wonderful.

On 20 December 2018 the Court of Session Inner House issued a declarator, mirroring the CJEU’s judgment with expenses in favour of the petitioners and additional parties. As a result, constitutional law develops and flourishes – as it is intended to do.