Wightman and Others v Secretary of State for Exiting the European Union
| Jurisdiction | Scotland |
| Judge | Drummond Young,Lords Menzies,Lord Carloway |
| Judgment Date | 21 September 2018 |
| Date | 21 September 2018 |
| Court | Court of Session (Inner House) |
Scotland, Court of Session, Inner House (First Division).
(Lord Carloway, Lord President; Lords Menzies and Drummond Young)
International organizations — European Union — Membership — Withdrawal — Treaty on European Union, Article 50 — Notification by United Kingdom of its intention to withdraw from European Union — Whether notification to withdraw made pursuant to Article 50 may be unilaterally revoked by United Kingdom — Whether this question hypothetical or academic in nature given absence of any intention on behalf of United Kingdom Government to withdraw notification — Whether such question falling within jurisdiction of national courts in context of judicial review — Whether court able to entertain petition for judicial review without encroaching on parliamentary sovereignty — Whether such question admissible if referred to Court of Justice of the European Union
Relationship of international law and municipal law — Treaties — Withdrawal — European Union Treaties — Treaty on European Union, Article 50 — European Union (Withdrawal) Act 2018, Section 13 — Requirement of parliamentary approval of outcome of negotiations with European Council regarding withdrawal — Whether notification to withdraw made pursuant to Article 50 could be unilaterally withdrawn — Whether question regarding correct interpretation of Article 50 falling within supervisory jurisdiction of courts in context of judicial review proceedings
Treaties — Withdrawal — European Union Treaties — Treaty on European Union, Article 50 — Right of withdrawal from European Union — Notification of Member State of its intention to withdraw — Whether notification to withdraw made pursuant to Article 50 could be unilaterally revoked by Member State concerned — Whether this question ought to be referred to Court of Justice of European Union — The law of Scotland
Summary:2The facts:—On 23 June 2016, the electorate of the United Kingdom voted in a referendum to leave the European Union (“the EU”), the United Kingdom having been a member of the EU and its predecessors since 1973. On 29 March 2017, the United Kingdom notified the European Council of its intention to withdraw from the European Union under Article 50 of the Treaty on the European Union (“the TEU”).3
On 19 December 2017, a petition for judicial review was lodged in the Court of Session in Scotland, in which the petitioners sought a declarator specifying whether the United Kingdom's notification to the European Council pursuant to Article 50 of the TEU could be unilaterally revoked before the expiry of the two-year period laid down in that article, with the effect that, if such revocation took place, the United Kingdom would remain in the European Union. The petitioners argued that the answer to this question could only be given by the Court of Justice of the European Union (“the Court of Justice”) and that, therefore, the question should be referred to the Court of Justice pursuant to Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).4
By decision of 8 June 2018, the Lord Ordinary (first instance judge of the Court of Session) declined to make a reference to the Court of Justice and refused the petition for judicial review. He considered that the issue was hypothetical as the United Kingdom Government did not intend to revoke the notification to leave the European Union, the matter encroached upon
parliamentary sovereignty and was outside the jurisdiction of the Court of Session, and that the conditions for submitting a reference for a preliminary ruling to the Court of Justice had not been met.On 26 June 2018, the European Union (Withdrawal) Act 2018 received Royal Assent. Section 13 set out the means by which the United Kingdom Government was to obtain the United Kingdom Parliament's approval of the outcome of negotiations with the European Council. In particular, the withdrawal agreement could be ratified only if it, and the framework for the future relationship of the United Kingdom and the European Union, had been approved by a resolution of the House of Commons and been debated in the House of Lords. If no approval were forthcoming, the United Kingdom Government should state how it proposed to proceed with negotiations. If the United Kingdom Prime Minister stated, prior to 21 January 2019, that no agreement in principle could be reached, the United Kingdom Government should, once again, state how it proposed to proceed. That proposal should be brought before the House of Commons and the House of Lords.
The petitioners appealed, advancing four grounds of appeal. First, they maintained that the Lord Ordinary had erred in holding that the issue before him was hypothetical. Secondly, they argued that the Lord Ordinary had erred in holding that he could not provide an advisory declarator on the legality of future or contingent action. Thirdly, they claimed that the Lord Ordinary had erred in holding that referring to statements made in the United Kingdom Parliament in their petition was unconstitutional. Lastly, they alleged that the Lord Ordinary had erred in determining that the Court of Justice would not entertain a preliminary reference on the interpretation of Article 50 of the TEU.
The respondent replied, first, that there was no genuine dispute between the parties about the proper construction of Article 50 of the TEU because the United Kingdom Government had no intention at all of revoking the withdrawal notification. Secondly, he argued that the Lord Ordinary had correctly understood the limitation on the Court's ability to issue advisory opinions. Thirdly, he maintained that parliamentary proceedings were not justiciable. Lastly, the respondent submitted that the Court of Justice did not admit preliminary references for purely hypothetical or advisory rulings.
Held (unanimously):—The appeal was upheld and the interlocutor granted by the Lord Ordinary on 8 June 2018 was recalled. The following question should be referred to the Court of Justice:
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 European Union 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 European Union?
(1) It seemed neither academic nor premature to ask whether the United Kingdom could revoke the notification of its intention to withdraw from the European Union. The answer to this question would clarify the options open to the members of the House of Commons when casting their votes on any agreement between the United Kingdom and the European Union. In particular, that answer would allow them to ascertain whether there were not two options before them, but three, namely withdrawal from the European Union without an agreement, withdrawal from the European Union with the agreement that had been laid before them, or revocation of the notification of the intention to withdraw and the United Kingdom's remaining in the European Union (paras. 27, 37, 39 and 57–8).
(2) Although the petition did not seek to review the acts or omissions of a public body, the case fell within the supervisory jurisdiction of the Court and thus within the scope of judicial review (paras. 26 and 67–9).
(3) A declarator by the Court of Session, suitably advised, by the Court of Justice, that the United Kingdom could revoke its withdrawal notification with the effect that it would remain a member of the European Union, did not infringe the boundaries of parliamentary privilege. The Court of Session would be simply stating the law and not compelling Members of Parliament to vote in any particular way (paras. 28–9, 41 and 64–5).
(4) Questions concerning the interpretation or validity of a rule of European Union law, submitted to the Court of Justice under the preliminary reference procedure, enjoyed a presumption of relevance and the Court of Justice was, in principle, bound to give a ruling. Reference to the Court of Justice was necessary because the situation before the referring court was not hypothetical or academic and the answer regarding the correct interpretation of Article 50 of the TEU could only be given by the Court of Justice (paras. 30–1, 42 and 60–1).
The following is the text of the judgments delivered in the Inner House of the Court of Session:
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 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...
To continue reading
Request your trial