Reclaiming Motion By Andy Wightman Msp And Others Against Secretary Of State For Exiting The European Union
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Menzies,Lord President |
| Neutral Citation | [2018] CSIH 62 |
| Date | 21 September 2018 |
| Docket Number | P1293/17 |
| Court | Court of Session |
| Published date | 21 September 2018 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 62
P1293/17
Lord President
Lord Menzies
Lord Drummond Young
OPINION OF LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motion
by
ANDY WIGHTMAN MSP AND OTHERS
Petitioners and Reclaimers
against
SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
Respondent
Petitioners and Reclaimers: O’Neill QC, Welsh; Balfour & Manson LLP
Respondent: Johnston QC, Webster; Office of the Advocate General
21 September 2018
The Issue
[1] Article 50 of the Treaty on European Union provides a mechanism whereby a
member state may withdraw from the EU. This involves the state notifying the European
Council of its intention. Once notification occurs, the Council is charged with concluding an
agreement with the state which sets out the arrangements for withdrawal, taking into
account the framework for the state’s future relationship with the EU. The agreement
requires the consent of the European Parliament and a qualified majority (72% of the
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members of the Council representing 65% of the population) of the Council. Article 50
continues:
“3. The Treaties shall cease to apply to the State…from the date of entry into
force of the withdrawal agreement or, failing that, two years after the notification…”.
[2] On 23 June 2016, a referendum of the United Kingdom electorate (European Union
Referendum Act 2015) produced a majority in favour of leaving the EU. Following R
(Miller) v Secretary of State for Exiting the European Union [2018] AC 61, the European Union
(Notification of Withdrawal) Act 2017 conferred power on the Prime Minister to notify the
UK’s intention to withdraw from the EU under Article 50. On 29 March 2017, the Prime
Minister so notified the European Council.
[3] On 19 December 2017, this petition was lodged. The petitioners, who include
members of the Scottish, United Kingdom and European Parliaments, seek a declarator
specifying: “whether, when and how the notification…can unilaterally be revoked”. The
legal question, which the petitioners wish answered definitively, is whether the notification
can be revoked in advance of the expiry of the two year period; with the effect that the UK
would remain in the EU. The petitioners maintain that such an answer can only be given by
the Court of Justice of the EU (CJEU). They therefore seek a reference to the CJEU for a
preliminary ruling under Article 267 of the Treaty on the Functioning of the EU.
[4] By interlocutor dated 8 June 2018, the Lord Ordinary declined to make a reference to
the CJEU and refused the petition upon three grounds. In short, first, the issue was
hypothetical as the UK Government had stated that they did not intend to revoke the
notification. Secondly, the matter involved an encroachment on parliamentary sovereignty
and was outwith the court’s jurisdiction. Thirdly, the conditions for a reference had not
been met, as the facts were not ascertainable and the issue was hypothetical.
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[5] Matters have moved on once more with the passing of the European Union
(Withdrawal) Act 2018. Section 13 of this Act sets out, in considerable detail, the means by
which parliamentary approval is to be sought once the negotiations between the UK
Government and the EU Council have been concluded. In particular, 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 they
propose 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, once again, state how
they propose to proceed. They must bring that proposal before both Houses.
[6] Meantime, on 15 May 2018 the Scottish Parliament refused to consent to what was
then the European Union (Withdrawal) Bill as advised under the legislative consent (Sewel)
convention (cf R (Miller) v Secretary of State for Exiting the European Union (supra) at para 150).
[7] At the expiry of the two year period, there may or may not be an agreement. If there
is an agreement, Parliament will have to decide whether to approve it. If it is not approved,
and nothing further occurs, the treaties will cease to apply to the UK on 29 March 2019. The
stark choice is either to approve the agreement or to leave the EU with no agreement. The
petitioners seek a ruling on whether there is a valid third choice; that is to revoke the
notification with the consequence, on one view, that the UK would remain in the EU. If that
choice were available, the petitioners argue, members of the UK Parliament could decide
which of three options was preferable. They could not only elect to reject the agreement
because it was, in their view, a worse deal than having no agreement at all, but also because
both the agreement or the absence of an agreement were worse than remaining in the EU; a
situation which could be achieved by revoking the notification. If such revocation were not
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