Wednesday, 28 March 2018

Brexit related litigation

This post is a brief note on a number of "Brexit-related" applications for judicial review which are before the courts in the UK.  In addition, note that there are certain legal proceedings before the Court of Justice of the EU and, for this, see the article by Jonathan Goldsmith in the Law Society Gazette 13th February 2018.

Judicial review is concerned with the legality of  decisions and actions and not with the merits (e.g. political merits) of the decision itself.  This very basic point was either not understood or was deliberately ignored by the media when the High Court was criticised for its decision in the Miller and Dos Santos litigation - see this previous post.  

Scotland – Court of Session

Seeks to establish that the notification of 29th March 2017 under Article 50 TEU could be unilaterally withdrawn.

Subsequently, permission for the judicial review was granted by the Inner House – see  Opinion in the Reclaiming Motion of Wightman and others v The Advocate General [2018] CSIH 18.

Note: Ultimately, whether a notice under Article 50 is revocable unilaterally (i.e. without the mutual agreement of the EU) is a question of the EU law and, as such, would have to be decided by the Court of Justice of the EU.  

On 8th June, the Court of Session (Outer House) decided not to make a reference to the Court of Justice of the EU. Read the judgment ....

and see The Guardian 8th June

There is an appeal being heard to the Inner House of the Court of Session on 15 August and if unsuccessful then possibly appeal to the Supreme Court.

High Court of England and Wales

The claimant in this case is an interest group which seeks judicial review of alleged failure of the Electoral Commission properly to discharge its responsibility to oversee spending of Vote Leave Limited and certain other campaigners in the period leading up to the referendum held in June 2016 on whether or not the UK should remain a member of the European Union.   Permission to proceed with the claim was refused when the claim was considered on the papers but the request for permission was renewed at an oral hearing. The court gave its reasons for granting permission to proceed with part of the claim.

Four grounds for judicial review were put forward but only one ground was accepted.  That ground raised arguable points of statutory construction (para 31). 

Note also para 52 – “It is well understood that the issues raised by this case have sensitive implications for participants in the referendum campaign and the general public. It should be equally well understood, however, that the court's role is strictly confined to determining the meaning and effect of the relevant legislation and that the advocates' submissions should therefore be similarly confined.”


High Court of England and Wales

An application brought by Good Law Project for judicial review was rejected in relation to obtaining publication of “secret Brexit studies” held by the government.

22nd January 2018 – on the basis of the papers, Garnham J rejected the application.  The application was renewed  and the issue at the renewed hearing was whether the Freedom of Information Act 2000 provided a suitable remedy for the complaint.  Supperstone J held that it did and rejected the application for judicial review.

High Court of England and Wales

Crowdjustice – When did Parliament decide that the UK should leave the EU.

On 28th February 2018 the High Court rejected the paper application for judicial review.  The application was renewed on 8th March and a hearing has yet to be held.

Oral permission hearing 12th June

Permission rejected by the High Court - 12th June - The Guardian  - The full Divisional Court judgment can be found here - [2018] EWHC 1543 (Admin) - and see the discussion at Monckton Chambers - Brexit blog.

An appeal is planned

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