The UK Supreme Court’s decision today that it lacks jurisdiction to hear an appeal from Wightman means, regrettably, that it will not be able to consider and correct the Court of Session’s unconstitutional judgment, which referred which referred the question whether an Article 50 notification is unilaterally revocable to the Court of Justice of the European Union. The CJEU is now due to hear argument in this case on Tuesday 27th November.
Professor Richard Ekins, Head of Policy Exchange’s Judicial Power Project, said:
“The UK Supreme Court reasoned that the Scottish Court’s reference to the CJEU was a preliminary ruling rather than a final judgment. This may be formally true but fails to recognise that the whole point of this litigation has been to secure a reference to the CJEU and therefore to influence future parliamentary proceedings in an unconstitutional way.
“As Sir Stephen Laws argued in a new paper published yesterday by Policy Exchange, the Scottish Court’s judgment was a misuse of judicial power which violates parliamentary privilege. Lord Lisvane, former Clerk of the House of Commons agreed in a Foreword to that paper. The Scottish Court’s decision to make the reference raises issues of fundamental constitutional importance for the UK, involving the constitutional separation between the Courts and Parliament. They are issues that should have been capable of being considered by the Supreme Court.
“The Supreme Court has been unable to rule on these fundamental matters by reason of the form of proceedings and by the Court of Session’s earlier refusal to grant leave to appeal. Next week’s hearing before the CJEU will, as Sir Stephen’s paper argues, involve putting both the UK and member states in the wholly unfair position of having to take sides in a dispute that does not yet exist. Each will be unable to put proper arguments on the merits because each will have an interest in the outcome that is at this stage only theoretical and speculative.
“This whole litigation confirms the risks of courts abandoning the principled limits on their constitutional function.”