Wightman v Secretary of State for Exiting the European Union
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby,Menzies,Carloway,Drummond Young |
| Judgment Date | 21 September 2018 |
| Neutral Citation | [2018] CSIH 62 |
| Date | 21 September 2018 |
| Docket Number | No 5 |
| Court | Court of Session (Inner House) |
[2018] CSIH 62
First Division
Lord Boyd of Duncansby
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Administrative law — Judicial review — Declarator on revocability of notification of withdrawal from the European Union — UK Government having no publicly stated position — Whether academic or hypothetical — Whether infringed parliamentary privilege — Whether should be subject of preliminary ruling to CJEU — Treaty on European Union (2007/C 326/01), Art 50
Andrew Wightman MSP, and a number of other members of the Scottish, UK and European Parliaments, presented a petition under the judicial review procedure in the Court of Session, seeking to bring under judicial review the UK Government's position on the revocability of its notice of intention to withdraw from the European Union in terms of Art 50(2) of the Treaty on European Union, and seeking a reference to the Court of Justice of the European Union to determine whether such revocation would be lawful. The Lord Ordinary (Doherty) ordered an oral hearing for the purpose of deciding whether to grant permission to proceed in terms of sec 27B of the Court of Session Act 1988 (cap 36) and r 58.7(1)(b) of the Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69)). The hearing called before the Lord Ordinary, on 2 February 2018. At advising, on 6 February 2018, the Lord Ordinary refused permission to proceed ([2018] CSOH 8). The petitioners appealed to the Inner House in terms of sec 27D(2) of the 1988 Act and RCS 58.10.
The cause called before the First Division (the Lord President (Carloway), Lord Menzies and Lord Drummond Young) for a hearing on the summar roll, on 21 February 2018. At advising, on 20 March 2018, the court allowed the appeal, granted permission to proceed, and remitted the case to the Outer House to proceed as accords ([2018] CSIH 18).
On 1 May 2018, the Lord Ordinary (Boyd of Duncansby) granted leave for two Members of Parliament to enter process as additional parties. Following sundry further procedure, the petition and answers called before the Lord Ordinary for a substantive first hearing, on 22 May 2018. At advising, on 8 June 2018, the Lord Ordinary refused to make a reference to the CJEU and refused the prayer of the petition ([2018] CSOH 61). The petitioners reclaimed. The additional parties took no part in the reclaiming motion.
Article 50 of the Treaty on European Union (2007/C 326/01) (‘TEU’) provides, inter alia, “1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. … [T]he Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal … 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
Members of the Scottish, UK, and European Parliaments brought a petition seeking to judicially review the UK Government's position that the notification of the United Kingdom's intention to withdraw from the European Union on 29 March 2017, in terms of sec 1 of the European Union (Notification of Withdrawal) Act 2017 (cap 9) and Art 50 of the TEU, was irrevocable. Following the grant of permission to proceed ([2018] CSIH 18), the petitioners shifted the focus of their case. They sought an advisory declarator as to whether, when and how the notification could be unilaterally revoked, and a reference to the Court of Justice of the European Union (‘CJEU’) to definitively answer those questions.
The petitioners argued there was a real dispute over the proper interpretation of Art 50(2) of the TEU and whether a notification might be unilaterally revoked, and it was necessary for definitive resolution of that question to make a reference to the CJEU. The petitioners argued the question was not hypothetical because it was directly relevant to the decisions that would be faced by Members of Parliament such as the petitioners in voting on any final agreement reached between the UK Government and the EU Council.
The respondents argued the questions were hypothetical and academic. The UK Government did not intend to revoke the notification, Parliament had not instructed it do so, and there was nothing to suggest that it would. There were no exceptional and compelling reasons for granting an advisory declarator. Further, it would infringe parliamentary privilege to obtain a judicial ruling purely for the purpose of providing legal advice to members in performing their parliamentary duties, and would involve the court in current debates in Parliament. There was, also, no genuine dispute that would allow the CJEU to entertain a preliminary reference.
At first instance, the Lord Ordinary refused to make a reference to the CJEU and refused the prayer of the petition. The petitioners reclaimed.
Held that: (1) the fundamental function of courts was to provide rulings on what the law is and how it should be applied, for practical reasons there were limits to the general right to a legal ruling (including that a court should not be asked to determine hypothetical or academic questions) but the default position was that the issue was justiciable and a restrictive approach was inconsistent with the modern view on the functions of a court in the public law field (paras 21–24, 48–50, 52); (2) Members of Parliament would be required to vote on ratification of any agreement between the UK Government and the EU Council, a vote against ratification would result in the United Kingdom's...
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Bibliography
...Scotland. Retrieved from https://235Bibliography www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csih62.pdf?sfvrsn=0Seguino, S. (1999). The investment function revisited: Discipliningcapital in South Korea. Journal of Post Keynesian Economics,22(2),3133......