Introduction

On 21 September 2018, the Inner House of the Court of Session, Scotland’s Court of Appeal,  requested a preliminary ruling from the European Court of Justice as to whether it was possible for the UK to unilaterally withdraw its Article 50 notice to the European Council stating that the UK intended to withdraw from the EU to allow the UK to remain as a Member State of the European Union. This ruling has the potential to be of substantial legal and political significance in the Brexit process.

Background

Under Article 50 of the Treaty on European Union (TEU) a Member State may withdraw from the EU This involves notifying the European Council of that country’s intention to do so. There is then a two year period in which the parties seek to agree withdrawal terms and the basis for a future trading relationship. If there is no agreement after the two years, provided there is no extension, then the EU treaties cease to apply to the withdrawing state. With the current state of the negotiations between the UK and the EU and with increasing fears of a no deal scenario many have argued that clarification was urgently needed regarding the Article 50 process.

One major question exercising many legal and political commentators and pressure groups was whether an Article 50 notice could be unilaterally withdrawn by the UK Government prior to the end of the two year period. Since the Brexit vote the UK Government have seen off many legal challenges in the Courts to keep this question out of the hands of the European Court . In addition several other cases in the Irish and other EU Member States Courts have failed to yield a successful result for those advocates seeking clarification of the law on this point.

However finally the central question will now be put to the European Court of Justice has got through with this latest Scottish ruling. The question will now referred to Luxemburg for a preliminary ruling.  Only the European Court can opine definitively on this issue.

Nevertheless an issue remains whether the European Court has the appetite to tackle such a politically charged case and to allow the use of its expedited procedure to ensure the case is heard before Brexit day.

The Case

Following notification, to the European Council, on 29 March 2017, of the UK’s intention to withdraw from the EU under Article 50 of the Treaty on European Union, a petition was lodged before the Scottish Courts by a  Member of the Scottish Parliament, Andy Wightman and  certain petitioners which also included other members of the Scottish, United Kingdom and European Parliaments. The petitioners sought a declaration specifying “whether, when and how the notification…can unilaterally be revoked” in advance of the expiry of two years after the withdrawal notification, with the possible effect that the UK would remain in the EU.

At first instance the Court declined to make a reference to the European Court. However, on appeal the Court of Session agreed the petitioners’ request to make a reference under Article 267 of the Treaty on the Functioning of the EU (TFEU). The Court of Session considered that it was neither hypothetical, academic nor premature to do so.

The  UK Supreme Court stated in R (Miller and Santos) (Respondents) v Secretary of State for Exiting the European Union (Appellant), [2017] UKSC that a notice under Article 50(2) could not be given in qualified or conditional terms and that, once given, cannot be withdrawn. This was on the basis that it was common ground between the parties in that case. The Supreme Court did not seek to question that position. However The Court of Session now appears to be of the view that what was common ground before the Supreme Court requires clarification by the European Court.

So what has changed ?

Well for one thing the European Union (Withdrawal) Act 2018 has now been passed which sets out the process for Parliament to approve withdrawal on terms agreed or to specify a mechanism in default of an agreement. Section 13 of the European Union (Withdrawal) Act 2018 provides that the withdrawal agreement can only be ratified if it, and the framework for the future relationship of the UK and EU, have been approved by a resolution of the House of Commons and been debated in the House of Lords  If no approval is forthcoming, the Government must state how it proposes to proceed with negotiations. If the Prime Minister states, prior to 21 January 2019, that no agreement in principle can be reached, the Government must bring before both Houses proposals regarding how it intends to proceed.

The Scottish Court  took the view that  it was perfectly reasonable given the current legislative and political situation that the question as to whether the Article 50 notice could be unilaterally withdrawn by the UK should be referred to the European Court. The matter was uncertain and the answer would have the effect of clarifying the options open to MPs when casting their votes on the proposed withdrawal arrangements. Finally the question could only be answered definitively by the ECJ.

Given the current unsatisfactory state of affairs between the UK and the EU a “no deal” scenario is looking increasingly likely.  Parliament is likely to have to make some difficult questions to confront when the matter is debated on or before 21 January 2019 under the terms of the European Union (Withdrawal) Act 2018. Therefore a ruling by the European Court of justice on whether Article 50 notice can be unilaterally withdrawn is likely to be of substantial legal and political significance in the Brexit process.

Case:

Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62 (21 September 2018).

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