Not up to courts to advise on Brexit withdrawal – expert
Publish date: 06 December 2018
Issue Number: 4603
Diary: Legalbrief Today
This week’s legal opinion that the UK has the unilateral right to withdraw its notice of withdrawal from the EU is 'unwarranted interference with parliamentary proceedings', according to an expert in parliamentary privilege. A Law Gazette report notes that, giving an opinion in Wightman and Others v Secretary of State for Exiting the European Union, a case referred by the Court of Session in Scotland, European Court of Justice Advocate-General Campos Sánchez-Bordona rejects the UK Government's claim that the case is inadmissible as it is purely hypothetical. Opinions by the Advocate-General are not binding on the court but are a very strong indication of which way the decision, expected in the next few days, will fall. The Advocate-General proposes that the Court of Justice should, in its judgment, declare that Article 50 of the Treaty of European Union allows the unilateral revocation of the notification of the intention to withdraw from the EU, provided that the revocation has been decided upon in accordance with the member state’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice. However in a paper for thinktank Policy Exchange, Sir Steven Laws, first parliamentary counsel from 2006 to 2012, argues that it is not the function of courts to give unsolicited legal advice to Parliament. ‘The courts should not seek to pre-empt or prescribe decisions on the relevance of particular matters to proceedings in Parliament. In the House of Commons that is the exclusive prerogative of the Speaker.’ A Jurist report notes, however, that despite the Advocate General’s determination that Article 50 TEU allows revocation, the overall effect of the statement may be minimal. The UK Government has resisted a preliminary ruling on this question by the EU court and has shown little interest in pursuing the option.
Meanwhile, the push for a final say referendum has taken decisive steps forward in London and Brussels just a week before Parliament is expected to reject Theresa May’s Brexit plan. According to a report in The Independent, this week MPs made the significant move of backing a plan to give the Commons more power to dictate what happens if the Prime Minister’s approach is ditched. A few hours earlier in Brussels the European Court of Justice also signalled it was set to rule that the UK could unilaterally revoke Article 50 – killing off Brexit – if it wanted to. The twin developments deliver both a means for MPs to secure a new referendum and legal clarity that they could halt the Brexit process if the public then decided to remain in the EU. The government’s weakness was once again underlined as it lost three consecutive votes – including one unprecedented defeat which resulted in May’s administration being held in ‘contempt of Parliament’ for refusing to publish legal advice on the proposed Brexit deal.