Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk
As the deadline for Brexit approaches and Theresa May’s conflicting negotiating goals become clearer, there are increasing demands for transparency regarding the Brexit process.
In late 2017, seven Scottish politicians from different parties and legislative bodies in Scotland (the Scottish Parliament, the UK Parliament, and the European Parliament) initiated a legal case in the Scottish Court of Session. They sought to answer a straightforward question: “Can a European Union member state unilaterally withdraw its Article 50 TEU notification to leave the EU?” Led by Andy Wightman MSP, the group includes Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP, and Joanna Cherry QC MP. They were joined in May 2018 by English MPs Tom Brake and Chris Leslie. The case was crowdfunded via the Good Law Project, led by Jolyon Maugham, who is also a petitioner.
The pursuers believe that the path to Brexit is not a one-way street and that other options exist. Representing constituents in a nation where the majority voted to remain in the EU, they argue that Brexit doesn’t have to be a choice between accepting the deal or leaving without one. They propose a third option: a second referendum that includes the possibility of remaining in the European Union.
For the Scottish court to rule on this legal issue, it would need to request a preliminary ruling from the European Court of Justice (CJEU) under Article 267 of the Treaty on the Functioning of the European Union. This is necessary because Article 50 TEU is an EU law provision, and only the CJEU can provide a binding interpretation of EU law for the entire EU.
The pursuers’ application for judicial review, filed in February 2018, was dismissed by Lord Doherty in the Outer House of the Court of Session. He reasoned that the question of whether an Article 50 TEU notification could be revoked was purely hypothetical. Both the UK Parliament and the government had shown no desire to deviate from the path to Brexit (paras 10-14 of the judgment). Lord Doherty concluded that the pursuers’ case had no chance of success (para 8; see s 27B(2)(b) of the Act) because it was not a justiciable matter appropriate for judicial determination.
The pursuers appealed this decision to a panel of three judges in the Inner House of the Court of Session, seeking both a judicial review and a CJEU referral. Although the three-judge panel criticized the original judicial review pleadings for being excessively complex, unclear, and falling short of expected standards, they chose to overlook these flaws due to the significant constitutional implications of the case and allowed the appeal. They argued that the case was neither academic nor hypothetical, as the UK Parliament could still request the government to withdraw the Article 50 TEU notification (para 30). However, even if the case proceeded, the pursuers were given time to revise and clarify their arguments (para 34).
Following these revisions, Lord Boyd of Duncansby heard the judicial review application in June 2018 and rejected it, along with the possibility of a preliminary reference to the CJEU (para 75). His decision rested on the hypothetical and speculative nature of the case. At the time, the EU (Withdrawal) Act 2018 was still being debated in Parliament, so the UK’s withdrawal date was not legally established. The exit date was determined solely by EU law under Article 50(3) TEU, which specifies either the date the withdrawal agreement takes effect or two years after the Article 50 notification, whichever comes first.
It is widely recognized that the CJEU does not consider hypothetical questions regarding EU law submitted by national courts (see, for instance, Foglia v Novello). The preliminary ruling process is designed to be a practical and collaborative tool between national courts and the CJEU (for example, Case C‑470/12 Pohotovost), assisting national courts in cases where understanding EU law is crucial for resolving the dispute. After reviewing relevant precedents, Lord Boyd decided that the case was hypothetical and did not require an answer for him to reach a judgment. He also pointed out that this stance aligns with the way Scottish courts handle hypothetical situations (see Macnaughton v Macnaughton Trustees 1954 S.C. 312 as discussed by Lord Boyd at para. 48).
The petitioners also challenged the UK Ministers’ assertion that Article 50 TEU cannot be unilaterally revoked. This issue had been implicitly assumed as settled in the landmark Miller case, where both sides agreed that unilateral revocation was not possible (para 10 of that judgment). However, Lord Boyd declined to engage in a detailed discussion about the legal validity of the UK Ministers’ stance on the revocability of Article 50 TEU, arguing that doing so would overstep Parliamentary privilege and violate Article 9 of the Bill of Rights 1689 (paras 54-58 of his judgment).
The pursuers immediately appealed to the Inner House of the Court of Session, where their reclaiming motion was granted. Delivered on September 21, 2018, the Inner House judgment sided with the petitioners on several grounds. Lord Carloway, the Lord President, refuted the UK government’s claim that the judicial review was incompetent because the requested order was impractical. He contended that the matter was justiciable precisely because of the existing controversy surrounding the proper way forward in the parliamentary process (paras 22-23 of the judgment). More importantly, the court found the case no longer hypothetical since the EU (Withdrawal) Act 2018 had become law in the interim, with some provisions already in effect.
Specifically, Section 13 of the Act—the “meaningful vote” section—states that after a provisional withdrawal agreement is reached between the UK government and the EU, the UK Parliament faces a binary choice: approve the withdrawal agreement and the future framework for UK-EU relations or reject it. If rejected, the government must inform Parliament of its next steps within 21 days. Additionally, before January 21, 2019, if the government believes no deal is possible, it must inform Parliament of its intended course of action, and again after January 21, 2019, the government must update Parliament on its plans.
All these scenarios assume the Brexit deadline remains March 29, 2019, and that the UK Parliament faces a stark choice: Deal or No Deal. However, the Scottish politicians involved in this case argue there’s an alternative: holding a second referendum on the terms of the deal, including an option to remain in the EU. This option hinges on postponing the UK’s automatic exit on March 29, 2019. The only ways to achieve this are either by securing the agreement of the remaining 27 EU member states to extend the Article 50 TEU deadline or by unilaterally revoking the Article 50 TEU notification. Without one of these options, given that it is already November 2018, there wouldn’t be enough time to organize a second referendum on the UK’s EU membership.
In their reclaiming motion, the Scottish judges endorsed the following question for referral to the CJEU (see the Appendix to the judgment):
“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU.”
Recognizing the urgent nature of the case, the Scottish court explicitly requested an expedited procedure (see Article 105 of the Rules of Procedure of the CJEU) from the Luxembourg court. On average, the CJEU takes 15.7 months to deliver a ruling under Article 267 TFEU (page 114 of the 2017 Annual Report of the CJEU). Ironically, this timeframe would render the judgment moot, as the UK is set to leave the EU in just over four months. However, even with expedited proceedings, the CJEU will likely need three to five months to issue a judgment. This timeframe remains problematic, as the UK and the EU reached a provisional withdrawal agreement on November 13, 2018.
For the question of Article 50 TEU’s revocability to be practically relevant, UK politicians need an answer before participating in a meaningful vote on the withdrawal agreement. Given the existing agreement in principle between the UK and the EU, UK MPs will likely vote on the deal before the Christmas parliamentary recess, which is only six weeks away.
This leaves the CJEU with a very tight window. The Scottish referral was received on October 3, 2018. Sixteen days later, the CJEU President confirmed that the case would be expedited due to its constitutional significance. The hearing is scheduled for November 27, 2018.
The UK government has formally challenged this preliminary ruling request on several grounds. First, they published a policy paper arguing that the Scottish court’s question remains hypothetical and that the CJEU overstepped its judicial role by entertaining this issue. These arguments can be easily dismissed. As a cooperative horizontal judicial process, it is solely the national court’s prerogative to determine whether to refer an EU law question to the CJEU. It is up to the judges presiding over a case to decide if they need clarification on an EU law matter to reach a judgment (See, for example, Case 126/80 Salonia). If a referral is deemed necessary, the CJEU’s answer is not merely advisory; it’s essential for the national judges to carry out their constitutional duty.
The UK government’s second objection challenges the process of seeking the CJEU’s assistance. The Advocate General for Scotland claimed that the Court of Session should have appealed the case to the UK Supreme Court instead of involving the CJEU. The Inner House of the Court of Session denied permission to appeal to the Supreme Court on November 8, 2018. Undeterred, the UK government submitted legal documents attempting to persuade the Supreme Court to overturn the Court of Session’s request for a referral. The Supreme Court has acknowledged receipt of these documents and assigned the case to Lady Hale, Lord Reed, and Lord Hodge. Given the Supreme Court’s statement acknowledging the matter’s urgency and the upcoming Wightman case hearing at the CJEU on November 27, 2018, a ruling from the Supreme Court is expected soon.
Regardless of the UK government’s approach’s merits, these legal actions reveal a concerningly poor understanding of EU law principles. It is a well-established doctrine in EU law that the Article 267 TFEU preliminary ruling procedure is not an appeal mechanism. National courts are free to request rulings from the CJEU without interference from higher national courts (See, for example, Cases 36 and 71/80 Irish Creamery Milk Suppliers Association v Ireland ECLI:EU:C:1981:62 and Case 338/85 Fratelli Pardini SpA v Ministero del Commercio con l’Estero ECLI:EU:C:1988:194).
Higher courts in Member States are free to provide guidance to lower courts regarding when to refer cases to the CJEU (See, for example, the statements of Sir Thomas Bingham MR in R. v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd Ex p. Else (1982) Ltd [1993] QB 534 and the case of Emerald Supplies Limited & Others v British Airways Plc [2017] EWHC 2420 (Ch)). Additionally, the CJEU itself publishes guidelines on how to refer EU law questions. However, these guidelines cannot restrict the broad discretion given to national courts to decide for themselves when an Article 267 TFEU referral is appropriate. The UK government’s lack of understanding of fundamental EU law principles is either a significant oversight or a blatant attempt to undermine established judicial communication channels between national courts and the CJEU. Either way, this weakens the UK’s reputation and conversely bolsters the credibility and standing of the Scottish courts and politicians.
Despite these challenges, the Brexit deadline steadily approaches. Only time will tell if Scotland can halt Brexit for the greater good of the United Kingdom.
*Update (23 Nov 2018): on 20 November 2018 the UK Supreme Court refused to give leave to appeal against the decision to refer, on the grounds that the Court of Session judgment was not final. The CJEU will therefore hold a hearing in this case as planned on 27 November. Also, you can find the full text of the written legal arguments of Mr Wightman and others before the CJEU here.
Barnard & Peers: chapter 27
Photo credit: Scotcourts.gov.uk