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 opinions in limited if not exceptional cases.
The ECJ Advocate General in his opinion would have none of this; he preferred to stress how useful an opinion on this key Brexit matter would be for politicians deciding on what position to take in the parliamentary debates. The EU case law does have some restrictions on the admissibility of hypothetical cases. When the Article 50 matter came before it, the ECJ therefore had to clear some ground before jurisdiction could be satisfactorily accepted according to its own case law (by which it is not bound in the same way as UK courts).
In the event, the Court dealt with the parties’ arguments on admissibility in little over a page. It said (correctly) that it is solely for the national court to determine the need for and relevance of a preliminary ruling to a dispute before it, but emphasised (again correctly) that the presumption of relevance that arises from the national court’s decision can be overcome by the European Court, if it is “quite obvious” that the question of EU law is hypothetical. In reaching this conclusion, the Court emphasised that the whole referral process is about “the effective resolution of a dispute.”
One might assume from this statement that before opining on an EU legal issue, some sort of litigation on which an answer was required would actually be pending and that some power was actually being asserted that could affect rights. A mere debate—however important—between politicians searching for resolution of a conundrum would therefore be insufficient for the Court to rule that a reference to it was admissible. Yet in its key paragraph, the Court dismissed the argument that the presumption of relevance could be overcome by the hypothetical nature of the “dispute”:
“In the present case, the referring court rejected the pleas of inadmissibility raised before it by the United Kingdom concerning the hypothetical or academic nature of the action in the main proceedings. It follows that insofar as the arguments of the United Kingdom government and the Commission are intended to call into question the admissibility of that action they are irrelevant for the purposes of determining whether the request for a preliminary ruling is admissible (see to that effect, judgment of 13th March 2007, Unibet C-432/05, EU:C:2007:173 paragraph 33).”
This paragraph needs to be unpacked and the authority (and its context) examined. Though correctly cited, even a cursory glance at the Unibet case shows it to be an entirely different animal from the one before the Court in this case. Unibet arose out of a prohibition on lotteries in Swedish law. A lottery operator wanted a judgment from the Court as to whether this prohibition was valid under EU law. This was a live dispute, as rights of private parties were affected by an operational national law—quite different from the situation that arose here, where the revocation of Article 50 was not in immediate contemplation by the UK government.
What the European Court has done here is empty the word “relevance” of its meaning; the case referred to the ECJ was a purely hypothetical dispute. This judgment could ultimately change the delicate relationship between national courts and the European Court. More immediately, it may be of more concern that the Court may have turned itself into a provider of purely advisory opinions during the lengthy Brexit saga. Whatever one’s view on withdrawal, such an outcome might be viewed as undesirable, enmeshing the courts in a political process.
However, being Big Brother may give rise to consequences not intended by the claimants in this case; for as the Court made clear, the highest national courts can validly restrict the European Court’s docket by not referring matters to it; if they are concerned that the process may be abused, they may decide to exercise this power and leave the mess to the politicians to sort out on their own.
Stephen Hornsby is a partner at Goodman Derrick LLP, the London law firm