The UK Government’s attempt to block a key, perhaps what is currently the key, Brexit related judicial referral has been rejected by the UK’s Supreme Court.
Incredibly, given the expertise and resources the Government has expended, the Government’s request for permission to appeal the decision of the Edinburgh Court of Session has been rejected for the simple reason that the Court of Session has not yet made a decision.
If this seems all rather illogical I am not surprised, but the question being asked is more complex than it might first seem and consists of multiple parts.
The question of “whether, when and how the notification … can unilaterally be revoked”, the question asked by the MPs, MSPs and MEPs in the case, is a complex one involving both UK and EU law. The question was explored in the Three Knights Opinion that The People’s Challenge commissioned in early 2017.
The Three Knights Opinion, produced by five leading experts in EU law: Sir David Edward QC; Sir Francis Jacobs QC; Sir Jeremy Lever QC (retired) plus Helen Mountfield QC and Gerry Facenna QC who acted for The Peoples Challenge in R (Miller) vs the SSExEU, argues very persuasively that Parliament can revoke the Article 50 notification under the terms of both UK and EU law.
The Court of Session has asked the CJEU to give a preliminary ruling on the EU law aspect of the question, so that the Court of Session can then make a Final Judgement.
The CJEU is expected to consider the reference in a week’s time and then the matter will be back with the Court of Session for the Final Judgement.
Notes:
The Opinion’s authors are Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC (retired) and the QCs that acted for the People’s Challenge Group in R (Miller) vs SSExEU, Helen Mountfield QC and Gerry Facenna QC.
Sir David Edward QC practised at the Bar in Scotland prior to his appointment as the United Kingdom’s Judge at the European Court of First Instance from 1989-1992 and subsequently Judge of the European Court of Justice from 1992 until 2004. In 2004 he returned to become a part-time judge of the Court of Session in Scotland. He is a Privy Councillor, Professor Emeritus at the University of Edinburgh and an Honorary Fellow of University College, Oxford.
Sir Francis Jacobs QC served as the United Kingdom’s Advocate General at the European Court of Justice from 1988 to 2006, having previously combined an academic career as Professor of European Law at the University of London with practice at the Bar. He is the President of the Centre of European Law at King’s College London and a visiting professor at the College of Europe. He was appointed a Privy Councillor in December 2005 and continues to practice at the Bar.
Sir Jeremy Lever QC is one of the most senior and respected figures in EU and competition law. During his more than fifty years at the Bar he acted in many of the leading cases in the fields of European law, competition law, and regulatory public law, including on behalf of the UK Government, the European Commission and the European Parliament. He is a Distinguished Fellow and Senior Dean of All Souls College, Oxford and in 2003 was knighted for services to European Law.
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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.
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