Over the past several months a number of attempts have been made to stop Brexit using a legal challenge. They have all relied on aspects of David Wolchover’s comprehensive article: “False Mantra of the “People’s Will” – The Case of the Missing Mandate”
None have so far managed to gain permission from a court (UK or EU) to proceed.
The likelihood of being able to proceed with one of the challenges and thus block Brexit has receded to such an extent that David Wolchover says in his article “Litigating Brexit at the eleventh hour”:
However, the outcome of one or other or both of two lawsuits respectively pending before the Divisional Court of the Queen’s Bench Division of the High Court of England and Wales, and the Court of Justice of the European Union (CJEU) may yet force the British government’s hand at the eleventh hour.
Neither could now directly result in an order cancelling the withdrawal of the UK from the EU, but the fall-out if the claims succeed could well change the course of events.
This was written in October 2017, so he could not know that the CJEU would reject the Shindler vs European Commission request for a judicial review as inadmissible on the grounds that the claimants had not been directly affected by the decision to open negotiations, as they were simply preparatory to a final act. They are looking into an appeal but there are very limited grounds available to them.
On Friday (7th December) there was an oral hearing in the High Court seeking permission to proceed with the challenge. Yesterday (10th December) the court refused permission to proceed on much the same grounds as it had done previously – the action was out of time.
The UK in the EU Challenge is looking at an appeal in order to get permission to proceed, but the current High Court term finishes in 10 days’ time on 21st December and the next term starts on 11th January.
If this challenge is successful it will still be for Parliament to decide what to do.
Given that there won’t be a result from the UK in the EU Challenge for some weeks, probably well into the New Year, the key factors are now the ruling by the CJEU that the UK can unilaterally revoke the Article 50 notification and what happens in Parliament now that the Government has scuttled away to find new way to dress up the unacceptable deal it has agreed with the EU.
In reality the government keeps on kicking the can down the road, apparently this is part of Theresa May’s methodology.
Perhaps she should pay some attention to David Davis, who in some previous incarnation seems to have been quite astute:
Project managers who believe that closing down a project will wreck their careers are tempted to carry on in the hope they will have a slight chance of saving their reputations. Both courses carry the risk of disaster for those responsible for a project, but one—abandonment—is often far better for the company.”
But perhaps, as Theresa May has already sacrificed her reputation, she considers that the consequences for those who hold her responsible don’t matter one iota.
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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.