Stephen Phillips: Clause that will take UK out of EU under legal scrutiny

Stephen Phillips is a Partner and member of the Brexit advisory team at CMS

Last year, Lord Kerr, the former diplomat who drafted Article 50 (the clause which sets out the mechanism for a nation to leave the EU) suggested that, once triggered, it could also be revoked. Those comments led a group including members of the Scottish, UK and European parliaments to petition the Court of Session in Edinburgh asking it to seek a declaration from the Court of Justice of the EU (CJEU), clarifying the point, which the Inner House of the Court of Session agreed to last month.

The petitioners argue that only the CJEU can give an authoritative answer to this question and hope to hear its response before the end of this year. If the CJEU agrees with Lord Kerr that Article 50 is revocable, MPs could have not two but three options when they eventually face a vote on Brexit proposals: approve a negotiated agreement with the EU (if any), choose No Deal or revoke Article 50 and opt to remain within the EU.

Along with the potentially explosive political implications, there are the constitutional and legal aspects surrounding this latest development in the unfolding drama.

The initial request for a reference to the CJEU was declined, with the judge in the Outer House of the Court of Session ruling that the question was hypothetical, as the UK government had stated it did not intend to revoke the notification made under Article 50. The petition was also refused on grounds that it encroached upon parliamentary sovereignty, was outwith the court’s jurisdiction and that the conditions for a reference had not been met, given the hypothetical nature of the issue.

Scotland’s Inner House of the Court of Session, however, unanimously allowed the question to be referred to the CJEU with the lead opinion delivered by Scotland’s most senior judge, and the Court’s Lord President, Lord Carloway. Lord Menzies and Lord Drummond Young also expressed similar opinions.

On the specific point of the case being merely ‘hypothetical,’ Lord Carloway noted that, subject to certain limits, the “principle of access to justice dictates that, as a generality, anyone, who wishes to do so, can apply to the court to determine what the law is in a given situation”. With the departure date of 29 March 2019 looming, which would be preceded by MPs voting on a proposed Brexit Bill, the Court ruled that clarity on the option to revoke Article 50 was neither academic nor premature. The fact that the UK government has stated it does not intend to revoke Article 50 is of no real consequence, when it is ultimately a matter for parliament, rather than government.

The Court of Session is clear that it is not seeking to influence parliament’s vote but merely to clarify the law: how MPs react to the answer the CJEU gives will be a matter for them. The purpose of this case is to establish whether a third choice of revoking Article 50 notification and keeping the UK within the EU after March 2019 is legitimate. A legally definitive ruling on whether this is possible would give MPs an informed choice, which they could choose to support or reject.

It is theoretically possible that the CJEU could decline to respond to the Court of Session’s request, although this seems unlikely. Assuming the CJEU accepts the request, it is likely to expedite its response to make it available well in advance of 29 March 2019 and the UK parliamentary vote, possibly before the end of this year.

Even if the CJEU response agrees with Lord Kerr’s opinion that Article 50 can be revoked, it’s impossible to know if it will be grasped by many MPs. Their response will depend on several factors, not least the state of a proposed withdrawal deal with EU by next March and the political atmosphere surrounding it.

Brexit has, once again, thrown the respective roles of parliament, the executive and the judiciary in the UK constitution into sharp focus. Whatever the result of the Court of Session’s reference to the CJEU, this case could result in UK MPs being properly and authoritatively advised as to the existing legal position on the biggest issue facing the country in living memory.

Stephen Phillips is a partner and member of the Brexit advisory team at CMS