Scotching Brexit? Background To The Wightman Example Close Reversing The Article L Notification Unilaterally

Alan S. Reid, Senior Lecturer inwards Law, Sheffield Hallam University. The writer welcomes comments on the weblog at a.s.reid@shu.ac.uk

As the Brexit clock ticks down, in addition to the diametrically opposed objectives of Theresa May's negotiating imperatives dice e'er to a greater extent than exposed, the clamour to clarify the processes in addition to procedures surrounding Brexit intensifies.

At the tail goal of 2017, a grouping of 7 Scottish politicians, from across the political spectrum in addition to from all iii legislatures for Scotland (the Scottish Parliament, the UK Parliament in addition to the European Parliament) commenced an activity inwards the Scottish Court of Session, essentially seeking an reply to the elementary enquiry 'Can a fellow member State of the European Union unilaterally revoke their Article fifty TEU notification to leave of absence the EU?' The grouping is headed past times Andy Wightman MSP, in addition to the other pursuers are Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP in addition to Joanna Cherry QC MP. English linguistic communication MPs Tom Brake in addition to Chris Leslie were joined inwards the instance inwards May 2018.  The instance was crowdfunded through the Good Law Project, headed past times Jolyon Maugham, who is every bit good a petitioner.

The pursuers are corking to know the reply to this enquiry since they believe that the road to Brexit is non unidirectional in addition to binary. For the pursuers, representing constituents inwards a nation of the Britain which voted overwhelmingly to rest inwards the European Union referendum, Brexit does non convey to number inwards 'Deal or No Deal'. Rather, at that topographic point may live on a 3rd way: Influenza A virus subtype H5N1 People's Vote that includes the pick to Remain inwards the European Union.

In gild for a Scottish courtroom to brand whatsoever pronouncement on this legal question, the courtroom would convey to transportation a preliminary reference asking to the European Court of Justice nether Article 267 of the Treaty on the Functioning of the European Union since Article fifty TEU is a provision of European Union police in addition to past times definition, exclusively the CJEU tin offering a binding interpretation of European Union police for the entire EU.

In Feb 2018, the pursuer's application for judicial review (subject, inwards Scotland, to the here) Having reviewed the regime inwards this matter, Lord Boyd declared that the instance was a hypothetical 1 which did non holler for to live on answered inwards gild for him to give judgment. He every bit good stated that this seat was synonymous amongst the seat adopted past times the Scottish courts every bit to hypothetical cases before them (for example, encounter Macnaughton v Macnaughton Trustees 1954 S.C. 312 every bit discussed past times Lord Boyd at para. 48).

The petitioners, inwards their case, every bit good objected to the stated seat of UK Ministers that outlines that Article fifty TEU is non unilaterally revocable. Indeed, inwards the before seminal constitutional instance of Miller,  the enquiry of unilateral revocability of Article fifty TEU was assumed past times both parties to live on answered inwards the negative (para 10 of that judgment). Lord Boyd refused to entertain an in-depth give-and-take every bit to the legal appropriateness of the stated seat of UK Ministers on the revocability of Article fifty TEU on the footing that were he to produce so, this would live on a usurpation of Parliamentary privilege in addition to opposite to Article nine of the Bill of Rights 1689 (paras 54-58 of his judgment). 

The pursuers in addition to hence right away appealed to the Inner House of the Court of Session, where their reclaiming motility was successful. The judgment of the Inner House was delivered on the 21st of September 2018. The Inner House found for the Reclaimers on a number of grounds. Lord Carloway, the Lord President, dismissed the UK Government's claim that the judicial review activity was non competent because the gild sought was non practical. On the contrary, Lord Carloway considered that the number was justiciable just because at that topographic point was such disputation every bit to the appropriate agency frontwards inside the parliamentary physical care for (paras 22-23 of the judgment). More significantly, the courtroom every bit good found that the instance was no longer hypothetical since inwards betwixt the appointment of the judgment past times Lord Boyd in addition to the acquaint case, the EU (Withdrawal) Act 2018 had at nowadays passed onto the statute books in addition to for certain provisions of that Act had come upwards into force.

In particular, confirmed receipt of these legal papers in addition to has assigned the instance to Lady Hale, Lord Reed in addition to Lord Hodge. It is to live on expected that a ruling volition live on forthcoming from the Supreme Court given the Supreme Court's argument itself that it is aware of the urgency of the thing in addition to the fact that the CJEU volition listen the Wightman instance on the 27th of Nov 2018.

Regardless of the relative merits or demerits of such an approach past times the UK Government, these legal actions prove a worryingly miserable grasp of European Union police principles. It is a well-established doctrine of European Union police that the Article 267 TFEU Preliminary Ruling Procedure is non an appeal machinery in addition to every bit such national courts are costless to submit requests to the Grand Duchy of Luxembourg court, costless of whatsoever interference from higher national courts (See for instance Cases 36 in addition to 71/80 Irish Creamery Milk Suppliers Association v Ireland ECLI:EU:C:1981:62 in addition to Case 338/85 Fratelli Pardini SpA v Ministero del Commercio con l'Estero ECLI:EU:C:1988:194).

Superior courts of the Member U.S. of A. are of course of report costless to number guidelines to the lower courts on when references should live on sent to the CJEU (See for instance the dicta of Sir Thomas Bingham MR inwards R. v International Stock Exchange of the Britain in addition to the Republic of Republic of Ireland Ltd Ex p. Else (1982) Ltd [1993] QB 534 in addition to the instance of Emerald Supplies Limited & Others v British Airways Plc [2017] EWHC 2420 (Ch)), in addition to the CJEU itself issues guidelines on how to cite European Union police questions to it, however, these guidelines cannot fetter the broad discretion afforded to national courts to brand their ain determination on the appropriateness of an Article 267 TFEU reference.  The lack of cognition of basic underpinnings of European Union police at the pump of the UK Government is either negligence writ large or an unashamed endeavour to circumvent good established judicial lines of communication betwixt national courts in addition to the CJEU. Either way, it diminishes the reputation of UK Plc. in addition to conversely enhances the standing in addition to reputation of the Scottish courts in addition to politicians.

Nevertheless, inexorably the Brexit clock lurches frontwards in addition to it remains to live on seen whether Scotland tin Scotch Brexit for the evident utility of the entire United Kingdom.

Barnard & Peers: chapter 27

Photo credit: Scotcourts.gov.uk

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