The Court of Session in Edinburgh has decided that a question about whether the United Kingdom’s Article 50 notification to leave the European Union can be unilaterally revoked should be answered by the Court of Justice of the European Union (CJEU).
The question was raised in a judicial review application made by a cross-party group of politicians from the Scottish, UK and European parliaments. The group believes that the UK can withdraw its Article 50 notice before 29 March 2019, without the consent of the other EU member states, if an acceptable agreement with the EU is not obtained. They argue in their petition that the matter should be referred to the CJEU for advice on European law.
At first instance the judge refused the application ruling that the question was hypothetical, as the UK Government did not intend to revoke the Article 50 notification to leave the EU, and the conditions for a reference to the CJEU had not been met. However, the Inner House, Scotland’s Court of Appeal, has reversed this decision.
In its judgment the Inner House noted that events had moved on with the passing of the European Union (Withdrawal) Act 2018 and that it was now clear that a vote would be held by MPs at Westminster on any deal negotiated by the EU and the UK Government. It concluded that the question raised by the group was no longer hypothetical but practical and competent and would have the effect of clarifying the options open to MPs in the lead up to such a vote. Consequently, the court agreed to refer the case to the CJEU for a preliminary hearing seeking advice on EU law. It has requested that the expedited procedure be applied to enable the decision to be made before the 29 March 2019.
This decision means the UK Parliament will get clear guidance from the European Court of Justice about the powers open to it when it is asked to vote on the Brexit deal. If the CJEU determines that article 50 is unilaterally revocable then it would be open to the UK Parliament to decide, in any future vote, to pursue that option irrespective of the policy of the UK Government.
It is unclear whether the UK Government will appeal this decision to the UK Supreme Court.