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Brexit, the revocation of Article 50, and the path not taken: Wightman and Others for Judicial Review against the Secretary of State for Exiting the European Union

Document Cited authorities 6 Cited in Related
Vincent
DOI10.3366/elr.2018.0511
Pages417-422
Published date01 September 2018
Author
Date01 September 2018
INTRODUCTION

The Supreme Court in Miller 1 held that the UK Government could not trigger Article 50 of the Treaty on European Union to initiate the UK's withdrawal from the European Union without Parliament's consent. Consequently, Parliament enacted the European Union (Notification of Withdrawal) Act 2017 (“2017 Act”) to grant the Prime Minister (PM) the power to trigger Article 50. Theresa May accordingly gave notification of the UK's intention to withdraw on 29 March 2017. The UK is due to leave the EU on 29 March 2019.

Unresolved in Miller was whether an Article 50 notification could be revoked. The Supreme Court largely ignored the issue because it was common ground between the parties that such notifications are irrevocable.2 A group of Scottish politicians has since raised this issue in the Scottish courts in Wightman.3 The petitioners sought judicial review of the UK Government's position on the revocability of Article 50, seeking a referral to the Court of Justice of the European Union (CJEU) on the matter as a question of EU law. In the Outer House of the Court of Session, Lord Boyd of Duncansby dismissed the petition. Referral to the CJEU was accordingly not sought, leaving the question of revocability unanswered.

This question is of profound relevance to the on-going Brexit discussions in Parliament and elsewhere. No matter its outcome, a referral to the CJEU could fundamentally alter the terms of the current debate. Confirmation of revocability allows the possibility of the UK changing its mind and remaining in the EU; confirmation of irrevocability removes any such possibility, rendering calls for a second referendum on EU membership redundant.

The fatal deficiencies in the petitioner's claim may appear to make both the appeal of the decision and future litigation on the issue by other parties unlikely. However, it is submitted that Wightman could mark the beginning rather than the end of finding a resolution of this issue. This analysis will suggest that framing the petitioner's argument differently could address many of Lord Boyd's concerns, perhaps resulting in a different outcome. This provides opportunity for further litigation on revocability, which may successfully yield an answer to this outstanding yet constitutionally significant legal question at a crucial stage in the Brexit process.

 <italic>WIGHTMAN</italic>

Section 27B of the Court of Session Act 1988 requires that permission to bring a judicial review action must be granted by the court. Permission is granted only if a petitioner can show “sufficient interest” and “a real prospect of success”. The petitioners in Wightman initially sought permission for judicial review from Lord Doherty in the Outer House. He refused permission, finding that the section 27B test was not met. He held that the action would constitute a breach of parliamentary privilege and would be based on a hypothetical question (given that neither the UK Government nor Parliament had indicated an intention to revoke).4

The petitioners successfully appealed to the Inner House. Lord Carloway, who delivered the opinion of the court, noted that the petition failed to present a clear, succinct argument (as is required by Somerville).5 However, because of the important constitutional considerations raised therein, Lord Carloway considered that there might be an argument which would have “a real prospect of success” and that the CJEU would likely respond to any referral. The court therefore granted permission, with time for adjustment of the petition to address the requirements of Somerville.6

The adjusted petition sought a preliminary reference from the CJEU on whether the UK could...

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