Judge refuses permission to proceed in legal challenge over revocability of Article 50

Lord Doherty
Lord Doherty

A cross-party group of members of the Scottish, UK and European parliaments who were seeking judicial review of the UK Government’s policy that the United Kingdom’s notification under Article 50(2) of the Treaty of the European Union will not be withdrawn have been refused permission to proceed.

A judge in the Court of Session described the issue as “hypothetical and academic” and therefore held that the application had “no real prospect of success”.

Article 50(2)

Lord Doherty heard that Green MSPs Andy Wightman and Ross Greer, along with SNP MEP Alyn Smith and MP Joanna Cherry, and Labour MEPs David Martin and Catherine Stihler, averred that as “a matter of law” the UK could “unilaterally withdraw” the Article 50(2) notification before 29 March 2019.

The petitioners also averred that as a matter of fact the UK Government’s claim that it has never taken any position on whether the notification may be withdrawn unilaterally was “inconsistent “with statements made in parliament by the respondent, the Secretary of State for Exiting the European Union David Davis, and by another Minister, Lord Callanan.

Under reference to the same parliamentary statements the petitioners maintained that the “true position” of the Government was that the notification cannot legally be revoked unilaterally” by the UK, and that therefore there was a “dispute” between the petitioners and the Government as to the “correct interpretation” of Article 50(2) which only the Court of Justice of the European Union (CJEU) could determine authoritatively.

The primary remedy which the petitioners sought was that the court should make a preliminary reference to the CJEU under Article 267 of the Treaty on the Functioning of the European Union (TFEU), and that the reference be sought by way of the CJEU’s expedited procedure.

They averred that “esto” the Government had expressed no view as to the legality of revocation, its refusal to state a position was “unlawful”.

‘Real prospect of success’

Counsel for the petitioners Aidan O’Neill QC argued that the Government’s position must mean one of two things: (i) that the Government considered it would be “entitled to refuse to comply” with any legislation enacted by Parliament which might instruct unilateral withdrawal of the notification; or (ii) that the Government’s interpretation of Article 50(2) was that it “cannot unilaterally withdraw the notification”.

It was submitted that that the application had a “real prospect of success” and that permission to proceed should be granted.

In reply for the respondent, David Johnston QC submitted that as a result of the referendum the Government was committed to withdrawal from the EU in terms of the Art 50(2) notification whether or not an agreement is reached with the EU.

The “firm policy” of the Government, which did not challenge the supremacy of Parliament, was that the notification under Article 50(2) will not be withdrawn and therefore the question whether or not it would be legal for it to do so unilaterally was “entirely hypothetical”.

It was argued that the application had “no real prospect of success” as there was no “live, justiciable issue” amenable to the supervisory jurisdiction of the court and the court should not entertain it – neither would the CJEU be prepared to entertain a reference on that question in the circumstances.

‘Hypothetical and academic’

Refusing permission to proceed, the judge ruled that the application’s prospect of success fell “very far short of being a real prospect”.

In a written opinion, Lord Doherty said: “In my view the Government’s stated policy is very clear. It is that the notification under Article 50(2) will not be withdrawn. This is not a case where it is necessary to examine statements in Parliament in order to ascertain or identify Government policy. Nor do I think that in the circumstances it is possible or legitimate to do so without breaching Parliamentary privilege.

“In any case, looked at in context, in my opinion the statements founded upon do not in fact support the contention that the rationale of the policy is a belief that unilateral withdrawal is not an available legal option.”

The judge did not accept the submission that the respondent’s policy meant that the Government considered it would be entitled to refuse to comply with any legislative instruction which conflicted with it.

Lord Doherty explained: “The fact of the matter is that Parliament has not proposed, let alone enacted, legislation directed to the United Kingdom’s withdrawal of its Article 50(2) notification. The Government’s policy is not in conflict with the legislative will of Parliament. Parliament authorised the Government to give the notification. Neither Parliament nor the Government wishes that the notification be withdrawn.

“Nor in my opinion is it implicit in the policy that the Government’s interpretation of Article 50(2) is that the notifying member cannot unilaterally withdraw the notification. On the contrary, the policy reflects, and is intended to give effect to, the view of the people of the United Kingdom, as expressed in the EU referendum and as confirmed by Parliament when it enacted the European Union (Notification of Withdrawal) Act 2017.”

He added: “Given that neither Parliament nor the Government has any wish to withdraw the notification, the central issue which the petitioners ask the court to decide – whether the UK could unilaterally withdraw the Article 50(2) notification – is hypothetical and academic. In those circumstances it is not a matter which this court, or the CJEU, require to adjudicate upon.”

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