The UK is due to leave the EU on 29 March 2019. The British Government’s draft withdrawal agreement – the so-called Chequers Deal or Plan – has been subject to critique on both sides of the Brexit debate within the UK and was largely dismissed as unworkable by EU leaders on 20 September 2018. The following day, Theresa May declared that the burden was then on the EU to devise a plan for Brexit.

The difficult negotiations have over the last several months fuelled renewed calls for a second referendum on EU membership whereby the British people would have the option to reject any withdrawal agreement and remain in the EU. Prominent politicians on all sides of the parliamentary divide have made such calls, including Justine Greening, Chuka Umunna, Sir Vince Cable and Sadiq Khan.

There is no doubt that Parliament has the power to legislate for the holding of a second referendum, although the practicalities of so doing in the time left before exit day are an issue. What is in doubt is whether or not the UK has the power to unilaterally revoke its withdrawal notification, made under Article 50 Treaty on European Union. The power to unilaterally revoke has been widely assumed by pro-remain politicians, and indeed the author of the clause, Lord Kerr, has suggested that the power to revoke a notification should be within the contemplation of the Treaty. However arguments presented on this blog (including by Cormac Mac Amhlaigh and Sir Jeffrey Jowell) suggest the contrary: that Article 50 is not unilaterally revocable.

Ultimately, the question of whether a withdrawal notification made under Article 50 is unilaterally revocable is one of EU law, which can only be settled by the Court of Justice of the European Union (CJEU). The Court has not yet had the opportunity to consider this point. If the UK does not have the power to revoke its notification, then any referendum decision on remaining in the EU would be moot and could not be legally fulfilled. Referenda on issues presupposing the UK’s withdrawal (such as approving the withdrawal agreement or a transitional period) might still be relevant.

The MSP Andy Wightman has led a group comprising several Scottish MPs, MSPs and MEPs seeking a CJEU preliminary ruling on the revocability of Article 50 through judicial review in the Scottish Court of Session. The case was initially fortunate to receive permission to proceed to a hearing, and was only permitted to progress on appeal; indeed, the premise of the case was criticised by Brian Christopher Jones on this blog. The first substantive hearing of the petition was in the Outer House by Lord Boyd. The petitioners sought in the first instance a CJEU preliminary ruling on whether an Article 50 withdrawal notification was unilaterally revocable. Should that preliminary ruling advise in the affirmative, they sought a declaration from the court as to how and when such a notice of revocation could be made.

Lord Boyd dismissed the petition because: he regarded revocability to be a hypothetical issue (given Government policy was against any withdrawal of the notification); he suggested that any judgment on the point would interfere with parliamentary privilege; and he believed that the case did not meet the CJEU’s criteria for a reference. The case was subject to much comment, including both on this blog by Kenneth Campbell and by the present authors elsewhere.

The case was appealed to the Inner House of the Court of Session on substantially the same arguments. The court found for Wightman on all points. On the issue of the case being hypothetical, the court held that the passing of the European Union (Withdrawal) Act 2018 constituted a material change in circumstances. MPs will now have a vote in Parliament on any withdrawal agreement, which transforms the issue from one which is hypothetical into one which is live. Regarding the issue of parliamentary privilege, the petitioners had ceased to rely upon ministerial statements and the court held that, per the Lord President:

A declarator of the law, of the nature sought, does not criticise or call into question anything that has been said in Parliament. It does not fetter or otherwise interfere with the options open to the legislature. It does not challenge freedom of speech in Parliament or parliamentary sovereignty. The court is not advising Parliament on what it must, or ought to, do. [28]

On the issue of the case meeting the CJEU’s criteria, the court believed that because the issue was live then it was unlikely that any request for a preliminary ruling would be refused. The court therefore now intends to seek a CJEU reference on the unilateral revocability of Article 50. This decision has great political significance.

The path to revocation?

It is unclear whether the CJEU will advise that Article 50 is unilaterally revocable. If the court does find for unilateral revocability, the petitioner’s second plea in law is for the Court of Session to declare the process by which a notice of revocation could be issued. This is significant because there has been no discussion in the hearings of Wightman as to what this process might be, and the issue is still to be determined. Even if there is a process identified by the Court of Session, the petition includes nothing which would render a decision to compel the UK Government to issue said notice of revocation. This is presumably the petitioners’ long-term aim.

There are two possible ways in which the Prime Minister could be compelled to revoke the withdrawal notification. The first would be by express instruction or authorisation in the form of an act of parliament, as per the suggestion of Robert Craig. However both the reality of the political situation and the limited time left before exit day might render the passing of such an act improbable. Reliance on this option might therefore be problematic.

A second and alternative method would be to compel the Prime Minister to consider the option of revocation through judicial review. Building on arguments presented by the present authors elsewhere, it is submitted that a process may exist already for revocation and furthermore that a future judicial review action could find the Prime Minister in breach of an implied duty in precluding such a possibility.

The Prime Minister triggered Article 50 on 29 March 2017 using powers conferred upon her by section 1(1) of the European Union (Notification of Withdrawal) Act 2017. Section 1(1) states that:

The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

It is submitted that this section confers a discretionary power, which permits but does not compel the Prime Minister to trigger Article 50.

The powers conferred on the Prime Minister under section 1(1) of the 2017 Act are bound to those of Article 50. This reflects Parliament’s intention to permit the Prime Minister to exercise Article 50 powers. This means that, if the CJEU advises that Article 50 is revocable, then the courts in the UK may interpret the powers granted under section 1(1) to include revocation.

Such a finding would still not compel the Prime Minister to revoke any notification or consider doing so. However the leading case of Fire Brigades Union held that a non-exercise of discretionary executive power could be judicially reviewed where a duty of or obligation on the decision-maker can be implied. It was held that “the Secretary of State [was] under a legal duty to consider whether or not to exercise the power” and was unable to prevent the possibility of its exercise through alternative executive action (575). The FBU case can be distinguished from the present situation because the duty was implied on the basis of a statutory scheme laid down in legislation with the clear intention of parliament that it would come into force at some future point. Discretion was thus as to when, rather than whether, the scheme was to be introduced. However if section 1(1) includes a discretionary power to both withdraw and revoke, a more modest but nevertheless significant duty to consider exercise of that discretion could be implied. Thus:

Applying Fire Brigades Union analogously, the court may find that the Prime Minister, although not obligated to exercise the power, nevertheless remains under a duty to consider its exercise, and at the very least cannot preclude its exercise altogether. (p. 421)

On this basis, Theresa May’s continued preclusion of the possibility of revocation might be held to be in breach of a duty to consider the exercise of a discretionary power conferred on her.

This argument could be made in a judicial review action in Scotland. Such actions must satisfy the tripartite test as set down by Lord Hope in West: a decision affecting others, made by a decision maker, exercising a power conferred on them by statute or other mechanism. These requirements are satisfied by the above argument. The Prime Minister as a decision-maker has failed to consider the exercise of a power conferred on her by the 2017 Act, and her failure in this affects the rights of all UK citizens.

Possibility of appeal by the UK Government against the referral

The above argument relies upon the receipt of a CJEU reference confirming revocability of Article 50. However it seems likely that the UK Government will appeal the request for a preliminary ruling. The petitioner, Andy Wightman, has publicly suggested that he does not believe that an appeal from the UK Government can prevent the CJEU reference. However Article 100(1) of the CJEU’s rules states that:

The Court shall remain seised of a request for a preliminary ruling for as long as it is not withdrawn by the court or tribunal which made that request to the Court. The withdrawal of a request may be taken into account until notice of the date of delivery of the judgment has been served on the interested persons referred to in Article 23 of the Statute.

Article 24 of the Recommendations to National Courts and Tribunals, in Relation to the Initiation of Preliminary Ruling Proceedings also states:

While the Court, in principle, remains seised of a request for a preliminary ruling for so long as that request is not withdrawn, it must nevertheless be borne in mind that the Court’s role in the preliminary ruling procedure is to contribute to the effective administration of justice in the Member States and not to give opinions on general or hypothetical questions. Since the preliminary ruling procedure is predicated on there being proceedings actually pending before the referring court or tribunal, it is incumbent on that court or tribunal to inform the Court of any procedural step that may affect the referral and, in particular, of any discontinuance or withdrawal, amicable settlement or other event leading to the termination of the proceedings. The referring court or tribunal must also inform the Court of any decision delivered in the context of an appeal against the order for reference and of the consequences of that decision for the request for a preliminary ruling.

The rules of the CJEU therefore allow the possibility that a referral will be withdrawn in light of an appeal being successful.

We therefore await the UK Government’s decision as to whether to appeal to the UK Supreme Court the Inner House’s decision to seek a preliminary ruling from the CJEU. In the meantime, the political debate on Brexit continues.

Robert Brett Taylor is a Lecturer in Law and Adelyn L. M. Wilson a Senior Lecturer in Law, both at the University of Aberdeen.

(Suggested citation: R.B. Taylor and A.L.M. Wilson, ‘Seeking and Implementing a Referral on Revocability of Article 50 Following Wightman‘, U.K. Const. L. Blog (26th Sept. 2018) (available at https://ukconstitutionallaw.org/))