By Fergus Colquhoun, Trainee Solicitor

Brexit is returning to the Courts after a Judicial Review of the interpretation of Article 50 of the Treaty on European Union (TEU) was given permission to proceed by the Inner House of the Court of Session.

Last month, a group of Scottish MPs, MSPs, and MEPs, led by the English barrister Jolyon Maugham QC and his campaigning organisation, the Good Law Project, were refused permission to bring a judicial review of Brexit in the Court of Session. The issue was whether or not the procedure for withdrawing from the EU under Article 50 of the TEU could be unilaterally revoked by the UK. As this is a question of EU law, their hope was to have the question referred to the Court of Justice of the European Union for a definitive ruling.

On 6th  February, Lord Doherty refused permission for the case to proceed: see our earlier comments on the case here and here.

Appeal

After Lord Doherty refused permission to proceed with the judicial review, the petitioners presented an appeal (known as a ‘reclaiming motion’) to the Inner House of the Court of Session. The appeal was heard by the Lord President and Lords Menzies and Drummond-Young. Earlier today, the Lord President delivered the Opinion of the Inner House passing the reclaiming motion and allowing the appeal.

What Next?

It is important to note that today’s decision relates purely to the question of ‘permission to proceed’. Under the recently reformed system of judicial review in Scotland, a petition for judicial review must undergo a ‘Permission Stage’, which is designed to weed out claims with no reasonable prospect of success at an early stage in proceedings.

The effect of today’s decision by the Inner House is that the petition has passed the Permission Stage. The petition will now return to the Outer House of the Court of Session for a hearing on the merits of the claim in more detail.

The Opinion delivered by the Inner House is, however, critical of the claim which has been made by the petitioners. The Court claimed to be ‘faced with a morass of factual averment and bombarded with authorities, which turn out to be mere examples of, or variants upon, the same theme’, and described the main plea-in-law of the petition as being ‘in entirely bland, and thus almost meaningless, terms’. The four week delay in coming to a decision on the appeal was bluntly ascribed by the Court to the difficulty it had in identifying the true issue:

‘The Court has…elected to take quite some time to consider the petition and written and oral arguments in an attempt to identify what…possible legal argument may be hidden in the petition’s many paragraphs.’

In declaring that the petition has passed the (low) test, the Court declared that ‘a case of substance, albeit not necessarily one which is likely to succeed, can be discovered’.

In terms of the Rules of Court, the petition will now proceed as a normal judicial review. In light of the comments of the Court, it is likely that the petitioners will be given the opportunity to adjust their case. Whether, after fuller consideration, the petition will ultimately be rejected remains to be seen.

The Opinion of the Court may be read here.