Friday 22 February 2019

Brexit-related litigation ~ update

This post is a summary of various applications for judicial review related to Brexit.  It may not be a comprehensive list. 

Supreme Court - The Miller / Dos Santos case:

The Supreme Court held (8 to 3) 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 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.

Mr Shindler and others took a case to the Court of Justice of the EU - see The Guardian 26 November 2018 and CJEU Application Case T-458/17.  13 British citizens residing in Member States other than the UK asked the General Court to annul the decision of the Council of the European Union authorising the opening of negotiations on Brexit.  The court ruled the application to be inadmissible.

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, the reference in O'Connor was discontinued - see Irish Examiner 24 October 2018.

Reference from Scotland -

In Wightman and others v Secretary of State for Exiting the EU, the Court of Justice of the EU (CJEU) held that notification under Article 50 of the Treaty on European Union is unilaterally revocable - Court's Press release 10 December 2018 and the Court's Judgment.

The various steps leading to this judgment may be seen in this earlier post.

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 .   See the latest update 22 December - 'Our judicial review application has been submitted and a judge will soon be considering whether to grant permission for our case to go to the next stage: a full judicial review hearing where we will get to set out our case in full.'

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 2000Previous post 17 September.

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

c)  Crowdjustice (Article 50 Challenge)  – When did Parliament decide that the UK should leave the EU.  The High Court rejected this application.

Divisional Court judgment - R (Elizabeth Webster) v Secretary of State for Exiting the EU [2018] EWHC 1543 (Admin) - and the discussion at Monckton Chambers - Brexit blog and 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 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.

f)  UK in EU Challenge - a hearing in  the High Court on 7 December 2018 brought by UK in the EU Challenge - asked the High Court to declare the referendum result null and void because of the Leave campaign's proven breaches of spending rules.  On 7 December, the High Court ruled the challenge to be out of time.  An application was made to the Court of Appeal but was rejected on 21 February 2019 - see this discussion at LBC 25 February 2019.  The Court of Appeal decision is at R (Wilson and others) v The Prime Minister [2019] EWCA Civ 304.

g)  English Democrats - an application for judicial review of the Prime Minister's decision to seek an Article 50 extension - see i News 3 April 2019


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

Crowdjustice - "Brexit"

Fair Vote UK

Good Law Project

UK in the EU Challenge

Previous similar post:

Brexit-related litigation - 4 October 2018.

Note on Judicial review:

Judicial review may be described as a legal process by which the High Court reviews the lawfulness of official decision-making.  The court is able to consider whether a public body has acted in accordance within its legal powers and obligations.  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.  Furthermore, judicial review has to be brought within time limits.

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.

In R (Wilson and others) v The Prime Minister, the Court of Appeal commented (para 56) -

"The Applicants clearly oppose the UK leaving the EU; and hold strong views to that effect. Others hold strong views in favour of leaving the EU. The subject matter raises passions on both sides. However, consideration of this claim must be focused exclusively on the question of whether the Respondent has acted in accordance with the law. The courts are not concerned at all with the merits of leaving or remaining in the EU. As Gross LJ observed of the issue before him in Webster (at 24]):
    Or, as Singh LJ and Carr J put it recently in R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) at [326]:
    "Judicial review is not, and should not be regarded as, politics by another means."

    As will be clear from this judgment, I consider those observations equally applicable to this case."

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