On 21 September, the Inner House of the Court of Session, Scotland’s highest court of appeal for civil cases, issued a judgment in an appeal in a petition for judicial review in which the petitioners sought a declarator as to whether or not the UK could unilaterally revoke its Article 50 notice to the European Council. In its petition, the petitioners also sought a reference to the European Court of Justice (‘ECJ’) seeking an answer to this question as the petitioners posited that to be the only body which could competently provide the answer. The petition was refused at first instance by the Lord Ordinary largely on the basis that the question asked was academic and hypothetical. In its decision, the Inner House rejected the Lord Ordinary’s reasoning and made a reference to the ECJ as sought by the petitioners.

On 3 October, the Inner House issued an order setting out the questions which were being referred to the ECJ. The questions set out were: “Where, in accordance with article 50 of the Treaty on European Union, 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 European Union?”

On 8 November 2018, the Court of Session refused the UK Government permission to appeal its order of 3 October. Subsequently, the UK Government applied directly to the UK Supreme Court for permission to appeal. On 20 November, the UK Supreme Court refused the UK Government permission to appeal.

The basis upon which the Supreme Court refused permission was that, in terms of section 40 of the Court of Session Act 1988, the only basis on which an appeal against the order in question might be taken would be if they constituted “a decision constituting final judgment in any proceedings”. The court noted that a final decision was defined in the 1988 Act as “a decision which, by itself or taken along with prior decisions in the proceedings, disposes of the subject matter of the proceedings on its merits”.

The Supreme Court determined that the Inner House’s order of 3 October was not a final judgment, but merely a preliminary ruling. The court held that the request to the ECJ did not dispose of the matter, and that the Court of Session would have to grant some sort of remedy following the ECJ’s ruling on the questions referred to it. Both the Inner House’s order of 3 October, and the ECJ’s ruling, when it comes, are simply steps in process. It will be for the Court of Session to issue a judgment following the ECJ’s preliminary ruling. Only at that stage will a final decision have been made which would be appealable.

The Practical Implications

The European Union (Withdrawal) Act 2018 (the ‘Act’) provides that Parliament must sanction any deal agreed by the UK Government and the European Union in relation to the UK’s withdrawal from the EU. In terms of section 13 of the Act, any agreement reached can only be ratified if it is approved by the House of Commons and has been debated in the House of Lords. If the House of Commons does not approve the deal, the Government is required to inform Parliament how it wishes to proceed. If no agreement is reached prior to 21 January 2019, the Government must also inform Parliament how it wishes to proceed.

The stark choice facing Parliament is to approve any deal agreed between the UK and the EU, or to leave the European Union without any deal or framework for the future relationship between the UK and the EU. What the Petitioners have sought in this case is confirmation as to whether or not there is a viable third option: the UK revoking its Article 50 notice unilaterally and remaining in the EU.

The Inner House took the view that, in the circumstances, seeking an answer to the question posed by the Petitioners would provide Parliament with the ability to determine which scenario served the country best: (1) the deal agreed by the Government; (2) exiting the EU without a deal; or (3) remaining within the EU.

A preliminary ruling by the ECJ on this point will have a significant impact on the legal and political backdrop to the UK’s withdrawal from the EU. Whilst the exact date for such a ruling is not known, the ECJ has fixed a hearing for 27 November, and has previously indicated that it wishes to issue a decision before Christmas.