UK Government asks CJEU to decline article 50 reference

The EU Court of Justice should decline the reference from the Court of Session in the article 50 case because the questions posed are inadmissible, the UK Government is claiming in its written observations on the reference.

The reference was made in a petition brought by a group of MPs, MSPs and MEPs led by Green MSP Andy Wightman, who want a clear ruling on whether UK's the notice to leave to leave the European Union, given under article 50 of the EU Treaty, can be unilaterally withdrawn. They argue that elected members who have to vote on the terms of the withdrawal should have a clear picture of the alternatives available, and the Inner House agreed that the Luxembourg-based court should be asked for a ruling.

In its written submissions published today, the UK Government sets out its position that the questions posed are inadmissible on the basis that the CJEU has long refused for very good reasons (a) to answer hypothetical questions; or (b) to provide advisory opinions. 

It remains a matter of firm policy, the Government states, that the UK will not be revoking the article 50 notice, hence the question posed is hypothetical. Further, the reaction of the EU27 and EU institutions to any such imagined revocation is unknown, so the terms of any "dispute" are theoretical without the full facts and context of the reaction to such hypothetical revocation being clear. 

The published statement continues: "The CJEU has over many years consistently refused to answer questions that are truly hypothetical. Whilst it is deferential to national court views that the questions require answering for a domestic dispute before it, it will test that question for itself and refuse to answer the questions referred if it is clear that there is no domestic dispute to which the questions are relevant, or the domestic proceedings are contrived.

"Likewise, the CJEU has long refused to provide advisory opinions on questions of EU law. There are compelling reasons in the Treaties for such a stance. The Treaties make provision for the CJEU to provide advisory opinions, but only in strictly limited cases: the opinion must concern the legality of a proposed international agreement; and the opinion must be sought by an EU member state or institution, rather than a private person. To allow national proceedings to be used as a route to circumvent these limitations would be a misuse of the preliminary reference procedure.

"These CJEU rules on admissibility are a form of judicial self-restraint and (where dealing with public law or constitutional matters) a reflection of the principle of the separation of powers, that prevents the judiciary becoming inadvisably involved in political debate."

An application to the Court of Session for permission to appeal the decision of the Inner House to the UK Supreme Court is due to be heard on Thursday 8 November. The Court of Justice has already reserved 27 November for a hearing on the reference.

Click here to access the published statement.