Can The UK Reverse Its Decision To Leave The EU?

Fiona Pearson considers a bombshell ruling of legal and political significance in the Brexit process. In a move described as 'disappointing' by the Government, the European Court of Justice (ECJ) will be asked if the UK can unilaterally revoke its Article 50 request to leave the European Union.

Scotland's highest court has agreed to refer the fundamental question of whether EU law permits unilateral revocation of an Article 50 withdrawal notice to the ECJ (Wightman and others v Secretary of State for Exiting the European Union [2018] CSIH 62 P1293/17 (21 September 2018)).

The ECJ's decision is expected before Christmas and, depending on the outcome, could be a catalyst for a 'no Brexit' parliamentary vote or even a second referendum.

Background

Article 50 of the Treaty on EU provides a legal mechanism for a member state to withdraw from the EU.

On 23 June 2016, a referendum of the UK electorate (European Union Referendum Act 2015) produced a majority in favour of leaving the EU.

Following R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61, the European Union (Notification of Withdrawal) Act 2017 conferred power on the Prime Minister to notify the UK's intention to withdraw from the EU under Article 50.

Article 50 was triggered by Teresa May on 29 March 2017, and following a two-year divorce negotiation, the UK is due to leave the EU on 29 March 2019. However, negotiations between the EU and the UK have so far failed to reach a positive outcome, increasing the risk that the UK will crash out of the EU on 29 March 2019 without any trade deal in place.

The Scottish referral to the ECJ therefore comes at a crucial point in the negotiations.

The issue for the Court of Session

Following the Government's notification under Article 50, a petition was lodged before the Court of Session by a cross-party group of politicians, including members of the Scottish, UK and European Parliaments (the Petitioners).

The Petitioners sought a declaration specifying whether the notification could be unilaterally revoked before expiry of the two-year period, with the effect that the UK would remain in the EU.

An answer could only be given by the ECJ, so the Petitioners sought a reference under Article 267 of the Treaty on the Functioning of the EU.

At an interim hearing by the Court of Session earlier this year, the court declined to make a reference to the ECJ and refused the petition on three grounds. Firstly, that the issue was...