Scotland court orders hearing on referring Brexit withdrawal question to ECJ

Scotland court orders hearing on referring Brexit withdrawal question to ECJ

A three-judge panel of the Inner House of the Scotland Court of Session [official website] on Tuesday ordered [text, PDF] a hearing on whether a referral may be made to the European Court of Justice (ECJ) [official website] on the revocability of the UK’s notice of intention to withdraw from the EU.

In so ordering, the court rejected the lower court’s conclusion that there is no “real prospect of success” of such a petition seeking judicial review of the UK government’s position on the matter.

The provision invoked by the petitioners in the case is Article 50 of the Treaty on European Union (TEU) [text, PDF], which provides that: 1) Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements, and 2) A Member State which decides to withdraw shall notify the European Council of its intention.

In refusing to permit a hearing on referring to the ECJ the revocability of the Article 50 notification, the lower court stated that there was no need to look deeper into what the UK government’s policy was on the revocation of the Article 50 notice because “Neither Parliament nor Government sought to have the notification withdrawn. In these circumstances the issue, which the petitioners wished the court to determine, was hypothetical and academic.”

In a similar case last month, the Outer House of the Court of Session, which represents the court of first instance, refused to make a preliminary reference [JURIST report] to the ECJ on the very same question, although the court did grant a hearing on the matter. Here, the lower court refused to even permit a hearing on the matter, which the appeals court found to be a reversible error because the test of “real prospect of success” of a case was met in this situation:

The words “real prospect of success” mean what they say. … They were designed to set a higher hurdle than that which was described in EY [v Secretary of State for Scotland] as “low.” The new test is certainly intended to sift out unmeritorious cases, but it is not to be interpreted as creating an unsurmountable barrier which would prevent what might appear to be a weak case being fully argued in due course. Of course the test must eliminate the fanciful, but it is dropping the bar too low to say that every ground of review which is not fanciful passes the test. It is not enough that the petition is not “manifestly devoid of merit” … 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 UK has been slowly progressing on its plans to withdraw from the EU since the Brexit vote [JURIST report] in June 2016. The UK House of Commons voted 324-295 [JURIST report] in January to pass the European Union (Withdrawal) Bill, also known as as the “Brexit” bill. The House of Lords began deliberations on the bill on January 30.