Andy Wightman MSP and others v Advocate General for Scotland

A petition seeking judicial review of the United Kingdom Government’s “position” on the revocability of a notice of intention to withdraw from the European Union in terms of Article 50.2 of the Treaty on European Union has been granted permission to proceed following an appeal. The following is a summary of the opinion of the court.

The Lord Ordinary had held that the issue was “hypothetical and academic” and therefore refused permission to proceed on the basis that the application had “no real prospect of success”, but the petitioners lodged a reclaiming motion (appeal) challenging that decision. 

An appellate division of the Court of Session has allowed the reclaiming motion and granted permission to proceed, having ruled that the petition did raise “a point of substance” which should be argued at a full hearing.

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young, heard that the petitioners seek a reference to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union to determine whether such revocation is lawful.  In the event of guidance being provided by the CJEU, the petitioners seek reduction of a letter from the respondent, dated 7 December 2017, and a declarator specifying the manner in which a notification of withdrawal can be revoked by the United Kingdom.  

In refusing permission to proceed, the Lord Ordinary held that the UK Government’s policy was clear; that notification under Article 50.2 would not be withdrawn.  There was no need to look further to determine what their policy was.  In these circumstances the issue, which the petitioners wished the court to determine, was hypothetical and academic.  

It was submitted by the petitioners that a ruling was required in order to allow the democratic constitution of the UK to function properly and efficiently. The parties were not seeking an advisory opinion, but a ruling from the CJEU on an unresolved point of EU law which the court would be obliged to apply.  It was a matter which required to be authoritatively resolved in order to enable the petitioners to carry out their constitutional duties as members of their respective parliaments.  

The respondent maintained that the petitioners had not demonstrated that they had a real prospect of success.  The issue here was hypothetical and academic.  There was no genuine dispute about the proper construction of Article 50.2 or any reason for the court to entertain the issue of the unilateral revocability of a notice of withdrawal.  

Delivering the opinion of the court, the Lord President said: “This petition has significant problems; notably those identified by the Lord Ordinary.  It is not clear from the averments in the petition that the UK Government does have a stated policy on the competency of revoking the notification of withdrawal.  The statements from the Secretary and Minister of State for Exiting the EU are, at best for the petitioner, ambiguous.  Whether it is possible to review a Government’s ‘position’, especially an unstated one, is highly questionable.  The purpose of having a CJEU, or domestic, ruling on whether a notification of withdrawal can be revoked is uncertain.  There is no obvious legal requirement on a Government to respond to enquiries about what their understanding of EU law might be. 

“Nevertheless, if this petition were shorn of its rhetoric and extraneous and irrelevant material and were reduced, after adjustment, to a manageable size which conformed to Lord Hope’s guidance in Somerville v Scottish Ministers (supra), a case of substance, albeit not necessarily one which is likely to succeed, can be discovered.  The issue of whether it is legally possible to revoke the notice of withdrawal is, as already stated, one of great importance.  On one view, authoritative guidance on whether it is legally possible to do so may have the capacity to influence Members of Parliament in deciding what steps to take in advance of, and at the time of, a debate and vote on the European Union (Withdrawal) Bill.  After all, if Parliament is to be regarded as sovereign, the Government’s position on the legality of revoking the notice may not be decisive.  

Whether the CJEU will entertain a question of the type proposed is dependent upon whether this court considers that there is a genuine dispute requiring settlement (see Article 267 of the Treaty on the Functioning of the EU.  That is the de quo of the petition itself.  If this court sought a reference, the CJEU would be bound to reply to the questions asked. 

“In short therefore, having regard to all the circumstances, the court is of the view that the Lord Ordinary erred in holding that there is no ‘real prospect of success’ in this petition, as that phrase has been explained above.  There is a point of substance, albeit one heavily concealed by the averments, which should be argued in the normal way.  The court’s decision, having heard full argument, may ultimately reflect the Lord Ordinary’s view, but that is for another day.” 

The full Opinion of the Court is available on the Scottish Courts and Tribunals Service website. 

Notes to editors 

This summary is provided to assist in understanding the court’s judgment. It does not form part of the reasons for the decision. The full opinion is the only authoritative document. 

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