Wednesday 7 February 2018

Court of Session (Outer House) ~ Unilateral revocation of Art 50 notice

Court of Session Edinburgh
Update - see Good Law Project 9th February 2018 regarding an appeal and see Joint Note by Counsel for the Petitioners 

Scotland's Court of Session (Outer House) has refused permission to petitioners who sought judicial review on the issue of the unilateral revocability of Article 50 of the Treaty on European Union - see the opinion of Lord Doherty 6th February 2018.  There is a possibility that the decision will be appealed.

The petitioners wished to ascertain whether, as a matter of EU Law, a notification of withdrawal under Article 50 TEU may be unilaterally withdrawn by the State which gave the notification.  Legal opinion has varied considerably on this point - please see earlier posts 23rd July 2017 and 20th October 2017.

The UK government has maintained a clear policy position that they are not going to seek to revoke the Article 50 notice.  The Miller and Dos Santos litigation proceeded on common ground between the parties that notice under Article 50(2) could not be given in qualified or conditional terms and that, once given. it could NOT be withdrawn - see Miller Judgment at para 26.  The majority judgment stated - "Especially as it is the Secretary of State's case that, even if this common ground is mistaken, it would make no difference to the outcome of these proceedings , we are content to proceed on the basis that that is correct, without expressing any view of our own on either point."

Lord Doherty gave reasons for refusing the judicial review.  At para 9 he said - "I am mindful that demonstrating a real prospect of success is a low hurdle for an applicant to overcome.  However, I am satisfied that that hurdle has not been surmounted.  Indeed, in my opinion the application's prospect of success falls very far short of being a real prospect"  Then, at para 10, he said - "In my view the Government’s stated policy is very clear.  It is that the notification under Article 50(2) will not be withdrawn."

At para 14 Lord Doherty said - "Given that neither Parliament nor the Government has any wish to withdraw the notification, the central issue which the petitioners ask the court to decide - whether the UK could unilaterally withdraw the Article 50(2) notification -is hypothetical and academic. In those circumstances it is not a matter which this court, or the CJEU, require to adjudicate upon."

The desire to try to prevent Brexit is entirely understandable given that virtually every responsible forecast shows that the UK economy will be the worse for it.  But, this is a political issue.  Even if the Art 50 notice was unilaterally revocable, the UK government is not going to revoke it unless, of course, there is a major change of heart within Parliament.

Para 13 of the judgment is also of interest.  "Nor in my opinion is it implicit in the policy that the Government’s interpretation of Article 50(2) is that the notifying member cannot unilaterally withdraw the notification.  On the contrary, the policy reflects, and is intended to give effect to, the view of the people of the United Kingdom, as expressed in the EU referendum and as confirmed by Parliament when it enacted the European Union (Notification of Withdrawal) Act 2017."  ]My emphasis].

The words in blue appear to be an accurate statement of the position.  There was nothing in the Referendum Act 2015 to make the outcome binding on anyone.  It was an "advisory" referendum.  However, some then go on to argue that Parliament needed to follow this up by making a decision of its own and that this had to be done by, at least, a formal vote expressing a decision to leave.  That idealistic view does not accord with political reality.  As Lord Doherty pointed out - the referendum result was effectively confirmed by the enactment of the European Union (Notification of Withdrawal) Act 2017.  The Act granted an unconditional power to the Prime Minister to give the Article 50 notice.  It would be nonsensical for Parliament to so authorise the Prime Minister to give the notice if Parliament did not wish the notice to be given.

Further litigation may yet come ....!

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