European Union: Scottish Court Says Court Of Justice Of The European Union Should Rule On Whether Brexit Notification Can Be Revoked

On September 21, 2018, the Court of Session delivered an Opinion allowing a reference to be made to the Court of Justice of the European Union for a preliminary ruling on whether the U.K. can unilaterally revoke its notice of withdrawal from the EU—Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62 (21 September 2018).

Under Article 50 of the Treaty on European Union, the United Kingdom gave notice to the EU Council on March 29, 2017 that it would leave the EU. The notification means that unless an agreement is reached between the U.K. and the EU, and absent any agreement to extend the two-year period, the U.K. will exit the EU on March 29, 2019.

The European Union (Withdrawal) Act 2018 provides that parliamentary approval must be obtained once the negotiations between the U.K. Government and the EU Council are concluded. This means that the withdrawal agreement can only be ratified with the approval of the House of Commons and after debate in the House of Lords. If no approval is forthcoming, or if the Prime Minister states, before January 21, 2019, that no agreement in principle with the EU can be reached, the Government must bring a proposal before both Houses on how it intends to proceed. The result is that if there is an agreement, Parliament must decide whether to ratify it or allow the U.K. to exit the EU on March 29, 2019 without any agreement (known as a "hard Brexit").

Certain members of the Scottish, United Kingdom and EU Parliaments and others would like to obtain a declaration from the CJEU on whether the U.K.'s withdrawal notification can be unilaterally revoked by the U.K. in advance of March 29, 2019. If revocation is possible, it would present a third option to Parliament - to revoke the notification with the effect that the U.K. would remain in the EU.

The Court of Session's Opinion is that a ruling from the CJEU on whether revocation is possible is needed before it can issue a declarator. In the case of R (Miller and Santos) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 (24 January 2017), the U.K.'s Supreme Court did not consider the revocation issue because it was an "agreed matter" between the parties that the Article 50 notification could not be withdrawn, once given. The Miller case is important because the Supreme Court held that the final decision about the withdrawal of the U.K. from the EU and the resulting arrangements is a matter for the U.K. Parliament to decide. The Court of Session considered that for Parliament to make an informed decision, it was correct for the courts to come to a conclusion on the effect of the existing law and, as the law in question is EU law, the issue could only be authoritatively decided by the CJEU. The Court's Opinion includes a draft reference which would ask the CJEU for a ruling on whether, under EU law, the U.K. could revoke its notification and if so, subject to what conditions and of what effect on the U.K.

The Court Opinion is available at: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csih62.pdf?sfvrsn=0. The client note on the Miller Case is available at:  https://www.shearman.com/perspectives/2017/01/act-of-parliament-to-trigger-brexit-negotiations.

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