By Fergus Colquhoun, Trainee Solicitor

Petition for Judicial Review by Andy Wightman MSP & others

On Tuesday morning at 9.30am, Lord Doherty, a judge at the Court of Session, will give a ruling on whether a group of Scottish MPs, MSPs, and MEPs may bring a Judicial Review of the Government’s Brexit Policy.

The Issue

At the heart of the dispute is the interpretation of Article 50 of the Treaty on European Union (TEU), which sets out the process for a country to leave the European Union (EU). Under Article 50(2), a Member State of the EU which decides to withdraw ‘shall notify the European Council of its intention’. Article 50 is, however, silent on the question of whether or not a Member State, having changed its mind about withdrawal, may unilaterally withdraw its notice and remain in the EU.

Led by Jolyon Maugham QC and his campaigning organisation, the Good Law Project, a group of Scottish Politicians have decided to refer the question to the Court of Session, the supreme civil court in Scotland. As this is a question of EU law, their hope is to have the issue submitted by the court to the Court of Justice of the European Union (ECJ) for a definitive ruling.

Implications

As matters currently stand, the Government will submit any Brexit deal which it reaches with the EU to Parliament for approval. If Parliament declines to ratify the deal, the UK will still cease to be a Member State of the EU, but will do so without any agreement in place. The campaigners in this case argue that if they are correct in their interpretation of Article 50, Parliament will have a third option open to it, namely to reject withdrawal and remain part of the EU.

The Next Steps

The case has been brought as a Judicial Review in the Court of Session. The petitioners claim that the Government has taken a policy position that a notice under Article 50 is irrevocable. As they argue that this is incorrect, they ask the court to refer the question to the ECJ for a ruling.

The system of Judicial Review in Scotland has recently undergone a significant change in process, and petitioners are now required to obtain the permission of the court to proceed. This ‘Permission Stage’ occurs after the petition for Judicial Review has been served on anyone who might have an interest in it, and is designed to weed out claims with no chance of success at an early stage in the proceedings. In particular, the court will refuse to hear Judicial Reviews on purely ‘academic’ points (that is to say, those which ask hypothetical questions). The Government has argued that the petition is entirely academic, and has asked the court to refuse permission on that basis.

The Article 50 Judicial Review went through a Permission Stage hearing on Friday before Lord Doherty, who was said to be openly sceptical. The petitioners have already signalled their intention to appeal should Lord Doherty refuse them permission to take the Judicial Review any further. Lord Doherty’s opinion is expected tomorrow morning.