Luxembourg, here we come! A comment on the Wightman decision

The legal aspects of the Brexit process have just become more complicated with the decision of the Scottish courts to refer to Luxembourg the question of whether a State can unilaterally withdraw a notification that it intends to leave the European Union. The process of leaving the EU is triggered by a notification under Article 50 of the Treaty on European Union. This starts a two-year period at the end of which that State’s membership comes to an end (unless an extension is unanimously agreed by all Member States). The Treaty is silent on whether, after making such a notification, the State concerned can revoke this, in effect ending the withdrawal process. The Court of Justice of the European Union (CJEU) is now to be asked whether this is possible.

The court action was raised in Scotland by a group including MPs, MEPs and MSPs (including the Scottish Greens’ Andy Wightman, under whose name the case is proceeding) and has raised a host of issues. These include whether the issue is purely hypothetical, whether the courts are infringing on parliamentary privilege and consideration of the role of the courts in constitutional matters and in stating the legal position in advance of key decisions.

When the case was first heard before one judge in the Court of Session, it was refused leave to proceed, but the Inner House (the appeal court) decided that it should be heard and has now come to its conclusion on the questions asked. A focus of the claim is the position that MPs will find themselves in when they have to vote on the outcome of the withdrawal negotiations. Under section 13 of the European Union (Withdrawal) Act 2018, any withdrawal agreement between the UK and the EU can be ratified by the UK only with the approval of the House of Commons and after the passing of an Act of Parliament which provides for the implementation of that agreement. What the litigants are seeking to have clarified is whether at that stage MPs are faced with only a binary choice – to accept the withdrawal agreement, or reject it (with the consequence that the UK will leave the UK with no agreement in place) – or could consider a third option, namely revoking the Article 50 notification and thus ending the withdrawal process. This would enable Parliament to make the choice that remaining within the EU is better than either a “bad deal” or a “no deal” Brexit.

The Inner House has now held that this is not a hypothetical issue and that clarifying the law on this issue does not trespass on Parliament’s territory. However, since deciding on the interpretation and effect of Article 50 is a matter of EU law, it is only the EU Court that can make a definitive ruling. And so the case is being referred to the CJEU under the standard rules for seeking a “preliminary ruling” on matters of EU law.

The proposed question to be sent to the CJEU is:

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 EU 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 EU?

In other words, can a State change its mind and decide to remain a member of the EU after all?

The CJEU in Luxembourg may decide to reject the case, but since it has been willing to consider other cases raising Brexit-related issues, the Scottish judges considered that unlikely. The CJEU is also notorious for the slow pace of its procedures, but it does have an expedited procedure for urgent cases. A recent case on the effect of the Article 50 notification on arrest warrants was referred to the CJEU from Ireland in May and decided in September, but even four months is a long time with only six months to go until the Brexit deadline.

The Court of Session’s decision by itself determines nothing, but adds a further complexity to the Brexit mix. The position is already fluid – the Supreme Court’s decision on the validity of the Scottish Parliament’s Continuity Bill is expected soon and there remains huge uncertainty over what, if any, outcome will emerge from the negotiations between the UK and the EU. Adding a further option into the mix will only add to the uncertainty. This is all the more so since we do not know when and in what order any of the pieces will become clearer. Things will not be dull between now and the end of March!

Photo courtesy of Cédric Puisney.