Yalland & Ors v Secretary of State for Exiting the European Union

Judicial review will ordinarily be premature where the Government has not reached a final decision and the legal or factual circumstances relevant to the proposed challenge remain uncertain. The court should not determine constitutional or statutory questions in the abstract where future legislation, governmental decisions or international negotiations may materially affect the issues. Advisory declarations are available only in exceptional circumstances involving important points of law and compelling public-interest reasons. Decisions on whether to leave the European Union or the European Economic Area are political decisions for ministers and Parliament, although the courts may determine legal questions once they properly arise.

The claimants renewed applications for permission to apply for judicial review after permission had been refused by Knowles J on the papers. Two sets of claims concerned the United Kingdom’s future relationship with the European Economic Area Agreement.

The first set alleged that the Government had decided to leave the EEA without parliamentary authorisation and without notice under Article 127. The second sought declarations that withdrawal under Article 127 required an Act of Parliament and Treasury approval. The Government maintained that no final decision had been taken on whether, when or how the EEA Agreement would cease to apply. The central issue was whether the claims were sufficiently justiciable and ripe for permission to be granted.

1. Permission refused. Both sets of claims were premature.
2. The evidence, read fairly and in context, did not establish that the Government had made a final decision on the mechanism by which the EEA Agreement would cease to apply. General ministerial statements, a political speech, a newspaper report and a parliamentary answer did not demonstrate such a decision.
3. Judicial review is ordinarily concerned with legal issues that have arisen for decision against established facts. The court will rarely determine issues depending on future factual events, future governmental decisions or legislation whose terms are not yet known. Any future legislation concerning Article 50 TEU, the European Communities Act 1972 or the European Economic Area Act 1993 might materially affect the issues.
4. The court therefore could not identify which issues, if any, would ultimately require adjudication or assess them in their full legal and factual context. The court expressed no view on the separate reasons given by Knowles J when refusing permission.
5. The decisions whether to leave the European Union or the EEA were political matters for ministers and Parliament. The courts remained responsible for deciding legal issues once properly presented. There was no order as to costs, and permission was given to refer to the judgment in legal proceedings.

Permission to apply for judicial review was refused on the papers by Knowles J on 30 December 2016. The Divisional Court refused the renewed applications because the claims were premature.