Court of Session asks CJEU whether Brexit can legally be reversed

21 Sep 2018 | by Monckton Chambers

The Inner House of the Court of Session has decided to make a reference to the CJEU for a preliminary ruling on the question of whether the United Kingdom can withdraw the notification of its intention to leave the EU under Article 50 TEU.

The petition was brought by Andy Wightman MSP and others, including Joanna Cherry MP. Monckton Chambers’ Gerry Facenna QC and Anneli Howard are providing pro bono advice and assistance to Liberal Democrat Brexit Spokesperson Tom Brake MP, and Labour’s Chris Leslie MP, who are represented in the Scottish proceedings by Morag Ross QC, instructed by John Halford at Bindmans LLP and Jennifer Jack of Harper Macleod.

On 5 June 2018 the Outer House of the Court of Session (Lord Boyd) refused to make a reference to the CJEU on the basis that the question of revocation of the Article 50 notice was hypothetical. However, in the decision handed down today, the Inner House (the Scottish appeal court) has unanimously held that the issue is not hypothetical and should be answered by the CJEU, in particular so that MPs who make the final decision on the Brexit process can be fully informed as to the options available to the UK, including whether revocation of the Article 50 notice is legally possible, and under what conditions.

In three separate Opinions the Inner House concludes, unanimously, that the issue properly falls within the scope of the Court’s jurisdiction, and constitutional role, to determine non-hypothetical questions of law, and that resolving the legal issues as to the effect of Article 50 TEU does not raise any issue of infringement of parliamentary privilege.

The Inner House proposes to ask the CJEU the following question:

“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”.

The CJEU will be asked to expedite the request, and is likely to have to consider a number of arguments about the meaning and effect of Article 50 TEU, which have been debated by numerous academics and commentators and were the subject of the so-called “Three Knights Opinion” whose authors include Gerry Facenna QC and former head of Monckton Chambers Sir Jeremy Lever KCMG QC (see previous news item here).

The Inner House Opinions can be read in full here. They contain a number of important observations on the constitutional role of the Courts, the non-hypothetical nature of the important issues facing parliamentarians who must vote on the Brexit process, and the need for the Courts to clarify the legal options open to the United Kingdom before Parliament takes the final decision on Brexit.