Why the European Court should never have ruled on Britain’s right to revoke the Brexit letterby Stephen Hornsby / January 4, 2019 / Leave a comment
All the attention directed to the case of Wightman v Secretary of State for Exiting the European Union has focussed on the finding of the European Court that the UK is able to revoke Article 50 unilaterally—and that the Council of Ministers cannot stop it from doing so. The judgment may or may not prove to be of practical importance to Brexit itself; much depends on whether the politicians wish to avail themselves of the extra option it appears to provide.
However, whatever happens, it is hard to believe that the United Kingdom will not remain subject to judgments of the European Court of Justice on disputes referred to it for a number of years—even beyond any current or extended transitional period. How the Court reached the decision that the matter was admissible in the first place (thus enabling it to help out politicians by confirming they had another option) therefore deserves some attention. The ECJ has characteristically given itself new powers to decide what disputes it can give its opinions on. The reasoning employed by the Court (which is also characteristic) could lead it to assume the rule of a general advice centre in the lengthy withdrawal process—unless the highest UK courts decide to exercise some control. In other words, a dangerous precedent has been set.
The matter came to the ECJ after a reference from the Scottish Courts, as a result of a declarator seeking a determination on whether, when and how an Article 50 notification might be unilaterally revoked. Before the reference was ultimately made by the highest Scottish court (and rushed through the normal European court timetable), a number of courts in Scotland had taken a view that the matter was a hypothetical—and declined to give the reference sought because there was no current dispute: no revocation of Article 50 was actually being contemplated by the UK government.
Very much the same arguments that failed in Scotland were relied on by the UK government before the ECJ to oppose admissibility. Particularly attractive was the argument that what was being sought was a purely advisory opinion, scope for which does exist in EU law but only in a very limited number of cases of which this was not one. This argument was in line with English case law, which only allows advisory…