Appeal judges give leave for article 50 review proceedings

A petition seeking judicial review of the UK Government’s "position" on the revocability of its notice of intention to withdraw from the European Union in terms of article 50 of the Treaty on European Union has been granted permission to proceed, following an appeal to the Inner House of the Court of Session.

The petition, by Andy Wightman MSP and six other parliamentarians, seeks to challenge the Governemnt's stated position that a notice once given cannot be withdrawn. They are attempting to have the issue referred to the Court of Justice of the European Union, and in the event of guidance being provided by that court, the reduction of a letter from the Advocate General of the UK Government dated 7 December 201, and a declarator specifying the manner in which a notification of withdrawal can be revoked by the United Kingdom.

The Lord Ordinary refused permission on the basis that the issue was "hypothetical and academic", and the application had "no real prospect of success" – the UK Government’s policy was clear that the notification would not be withdrawn. (Click here for report.)

However the First Division ruled today that the petition did raise a point of substance which should be argued at a full hearing.

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young, said in delivering the opinion of the court that the petition had "significant problems; notably those identified by the Lord Ordinary". It was not clear from the averments that the UK Government did have a stated policy on the competency of revoking the notification, and whether it was possible to review a Government’s "position", especially an unstated one, was "highly questionable". The purpose of having a CJEU, or domestic, ruling on whether a notification of withdrawal can be revoked was uncertain, and there was no obvious legal requirement on a Government to respond to enquiries about what their understanding of EU law might be.

He continued: "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."

Click here to view the opinion of the court.