Scottish court could make Brexit far from inevitable

Pavlos Eleftheriadis is professor of public law at the University of Oxford and a barrister at Francis Taylor Building

Can Article 50 of the Lisbon Treaty, triggered by Theresa May on March 29 last year to take the UK out of the European Union, be unilaterally revoked? A Scottish court is set to pass judgment on that vital question. It should refer the case to the European Court of Justice.

The Wightman case, which was heard by the Court of Session last Tuesday, has the potential to change the dynamics of Brexit – but not just yet. The applicants are a group of pro-European politicians led by Andy Wightman MSP and Ross Greer MSP. They seek a declaration that it is within the powers of the UK to withdraw its Article 50 notification, and are also asking for a reference to the ECJ. The court’s judgment will be issued in the next few days. Yet, it is unlikely to answer the question directly.

Whether notification can be so withdrawn is a matter of some disagreement among legal experts. John Kerr, who had a big hand in drafting the original article, insists that it can. Others beg to differ. One of the most interesting aspects is that the government is not claiming, as it did in challenging the case for a parliamentary vote on Article 50 brought by Gina Miller back in 2016, that notification is irrevocable. At the time, both sides accepted that it was irrevocable for the purposes of that case.

The government is now saying that the issue is entirely hypothetical, since its policy is that “the United Kingdom’s Article 50(2)TEU notification will not be withdrawn”. It is asking the court to reject the application because it is an entirely hypothetical or “academic” application.

The government’s procedural response is not particularly strong, however. This case is not about the government’s policy, but about its accountability. If we are to hold the government to account, we need to know what options are available. Whether notification can be withdrawn without costs for the UK is a very important political and legal question.

If withdrawing the Article 50 notification is possible and uncomplicated so that Brexit can be avoided without any costs to the UK, then parliament can start thinking about it. If the government refuses to listen, then parliament can sack this one in order to put another in its place. The government’s response seems to have momentarily forgotten that parliament is sovereign.  

Accordingly, the applicants’ submissions on Tuesday criticised the government for its “lack of candour” in not taking a position on the substance. They also reminded the court that the government lost several votes in the House of Lords, which amended significantly the Withdrawal Bill. It remains to be seen what the court makes of these points.

What happens if the government loses? The mechanics of withdrawal are actually governed by the EU treaties. Since this is the first attempt at withdrawal, the final answer can only come from the ECJ, to which the case should be referred. If the applicants win this round, the parties will have to go to Luxembourg to argue the substance (unless the government throws in the towel in order to avoid the political risk of going to a European Court over Brexit.)

The Court of Justice could expedite the process, so the answer would be known before March 2019. But the case will not hold up negotiations between the UK and the EU, since nothing in these negotiations turns on the question of revocability.

We are still at the early stages of this legal battle. Victory for the applicants will only take us to the next round, which will be before the ECJ. Victory for the government – on the basis that the issue is currently hypothetical – will merely postpone the issue for a future occasion. By then, the issue may well no longer be merely “hypothetical”.