Next week’s Supreme Court case on Article 30 could be referred to the European Court of Justice (ECJ), a senior EU law specialist has said.
The case of R (Miller and Dos Santos) v Secretary of State for Exiting the EU concerns whether the government has the power to trigger the UK’s withdrawal from the EU without Parliament’s approval. It is due to be heard by all 11 justices next week—the largest panel since the Law Lords were created in 1876. The judgment is expected to be delivered in early January 2017.
Charles Brasted, partner at Hogan Lovells, said: “The government's case was comprehensively rejected in the High Court but is seemingly going to be repeated in the Supreme Court, who will hear it in effect afresh.
“The elephant in the room is the question of whether the Art 50 notice could be withdrawn once issued. The High Court regarded this as pivotal but the government agreed with the claimants that it was not. The Supreme Court may be less willing to leave this point undecided, but it is difficult to see how it could be without a reference to the European Court—a course loaded with political and practical difficulty.
“Other complications have emerged too, including interventions by the devolved administrations and the prospect of a further challenge in relation to UK membership of the EEA. It is no surprise that the government is reported to be working on its strategy to get parliamentary input, whatever the result of this case.”
The government will argue next week that notification under Art 50 is not revocable and that this issue is of no practical significance to the appeal. Brasted said the High Court made its decision on this basis but the Lord Chief Justice said at the time that, if this shared understanding was not correct, the claimants’ case would be “blown out of the water”. The government may have chosen this approach to avoid the “politically unpalatable” risk of this issue being referred to the ECJ.
The Scottish and Welsh governments have also been given leave to intervene in the appeal, and the Attorney General for Northern Ireland is also expected to intervene, Brasted said.
The government has said it intends to give Art 50 notice to the European Council by March. However, this deadline will be unrealistic if the government loses the case and an Act of Parliament has to be passed.
