Thursday, 4 October 2018

Brexit-related litigation

This post is a "catch up" on a number of "Brexit-related" applications for judicial review. 

Judicial review:

Judicial review may be described as a legal process by which the senior courts review the lawfulness of official decision-making.  The courts are able to consider whether a public body has acted in accordance with its legal obligations and within its legal powers.  Where legal error is found, the court is able to grant appropriate relief.  Judicial review is not a process to allow judges to replace duly appointed decision-makers such as Ministers, Local authorities, NHS Trusts, Chief Constables and so on.  The court does not entertain mere busybodies since applicants have to show "sufficient interest" to bring judicial review but there is a public interest in ensuring that the rule of law is maintained.

Although a number of Brexit-related reviews have arisen it is not the role of the judges to stop Brexit.  Such matters of high politics have to be left to Parliament and the Executive which is accountable to Parliament.

So, how have the courts been involved in Brexit?  The following cases have come to my notice but I don't claim it to be a comprehensive list.

Court of Appeal (Civil Division) - The Shindler case:

The case concerned who was permitted to vote in the 2016 referendum.  Parliament had defined that in Section 2 of the EU Referendum Act 2015.   Mr Shindler's challenge failed - Court of Appeal (Civil Division) - Lord Dyson MR, Elias and King LJJ - [2016] EWCA Civ 469 - and the Supreme Court refused to hear an appeal and gave  these brief reasons for doing so.

Supreme Court - The Miller / Dos Santos case:

The Supreme Court ruled that an Act of Parliament was required to authorise the government to give notice under Article 50 Treaty on European Union.  The case is extensively discussed on this blog and elsewhere.  See UK Supreme Court Decided cases and Bailii [2017] UKSC 5.   The European Union (Notification of Withdrawal) Act 2017 followed this case and authorised the Prime Minister to give the Article 50 notice.

Court of Justice of the EU:

References from other States -

An article by Jonathan Goldsmith in the Law Society Gazette 13th February 2018 reported that a Dutch court had been persuaded to refer to the CJEU questions concerning the post-Brexit right of British ex-pats.  However, that reference did not proceed for reasons explained by EU Observer.

The Law Society article also highlighted a reference concerning European Arrest Warrants (EAW) from the Supreme Court of Ireland in the O'Connor case - on which see European Papers.

A further reference concerning EAW was made by Ireland's High Court together with a request for an expedited hearing - see Irish Legal 23 May 2018.  The request for an expedited hearing was granted and the opinion of Advocate-General Szpunar was published in August.  Judgment was handed down September - see Judgment and discussion at EU Law Analysis.

Given the judgment in this case, it may be that the reference in O'Connor will be discontinued - see Irish Examiner 5 October.

Reference from Scotland -

Scotland's Court of Session has made a reference as to whether the notification of withdrawal under Article 50 Treaty on European Union may be unilaterally revoked by the UK.  (Note - the UK government shows no sign of wishing to do this).  On 8 June, the Court of Session (Outer House) decided not to make a reference to the Court of Justice of the EU -

An appeal to the Inner House followed and, in September, the court decided to refer the point to the CJEU -

Any Wightman MSP v Secretary of State for Exiting the EU [2018] CSIH 62

The CJEU has received the reference - see HERE.  The case number is Case C-621/18  and a request for an expedited hearing has been granted with the court hearing set for 27 November 2018 - BBC News 5 October.

Whether the Art 50 notification may be unilaterally withdrawn was not answered in the Miller / Dos Santos case because that litigation proceeded on a basis agreed by the parties that the government would not revoke the notice.  This was criticised - e.g. Eutopia Law - Miller judgment breaches UKSC duties under EU law

For further discussion about unilateral withdrawal see this previous post 23 July 2017
 and also see Professor Steve Peers at Eulaw Analysis 18 January 2018 and European Law Blog 24 September 2018

High Court:

a)  October 2018 - The prime minister’s refusal to hold a public inquiry into the Brexit referendum is to be challenged in the courts - The Times 3 October.  The request for a public inquiry came about because of spending irregularities during the referendum campaign.  This matter is brought by Fair Vote UK and is currently at the "letter before action" stage.

b)  R (Good Law Project) v Electoral Commission [2018] EWHC 2414 (Admin) - held that the Electoral Commission had misinterpreted the definition of "referendum expenses" in section 111(2) of Political Parties, Elections and Referendums Act 2000. The source of its error was a mistaken assumption that an individual or body which makes a donation to a permitted participant cannot thereby incur referendum expenses. As a result of this error, the Electoral Commission had interpreted the definition in a way that was inconsistent with both the language and the purpose of the legislation.  Previous post 17 September.

On 4 October, the High Court refused an application to appeal the decision - see Good Law Project.

c)  Crowdjustice – When did Parliament decide that the UK should leave the EU.  The High Court rejected this application - see Divisional Court judgment - [2018] EWHC 1543 (Admin) - and the discussion at Monckton Chambers - Brexit blog.

The court said:

The case is discussed further in this previous post

d)  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.  See Good Law Project – 6th March 2018

e)  Good Law Project has issued proceedings against the Electoral Commission regarding funds given to the Democratic Unionist Party (DUP) and used to campaign for a Leave vote - see Good Law Project.


Please see these links for on-going activity ....

Crowdjustice - "Brexit"

Fair Vote UK

Good Law Project


A similar post dated 28 March 2018 has been deleted.

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