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Permission to Appeal in Wightman: A Question of Principle as well as of Procedure?

Document Cited authorities 4 Cited in Related
Vincent
Pages272-277
Date01 May 2019
DOI10.3366/elr.2019.0557
Published date01 May 2019
INTRODUCTION

On 20 November 2018, the Supreme Court refused permission to appeal the decision of the Inner House in Wightman v Secretary of State for Exiting the European Union 1 to make a preliminary reference to the Court of Justice of the European Union (“CJEU”) regarding the unilateral revocability of Article 50 of the Treaty on European Union. The statement of reasons provided by the bench focuses on the procedural rules which regulate when permission can competently be given to appeal. However, critics of the Wightman litigation have criticised the Supreme Court for focusing on these procedural considerations rather than on what they perceive as an issue of acute constitutional importance which they believe the Supreme Court should have an opportunity to address. Richard Ekins, director of the Judicial Power Project has noted:

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.2

The purpose of this short note is to argue that not only was the Supreme Court's refusal to grant permission to appeal correct on a procedural level – a point even Ekins appears to concede – but that it is also justified in principle. The principled defence, put briefly, is that it would be an abuse of process to grant permission to appeal which would then sufficiently delay final settlement of the issue so as to render the question hypothetical – and the petition incompetent – when the UK Government would be starting from a position of having lost in the Inner House. It is submitted that this is an argument made clearer and more forcefully by the Lord President in the Inner House's statement of reasons for refusing permission to appeal PROCEDURAL BACKGROUND

A petition for judicial review was raised by a number of members of the UK, Scottish and European Parliament seeking a declarator that Article 50 of the Treaty on European Union may be unilaterally revoked by the United Kingdom. In other words, they sought confirmation that the UK Parliament could unilaterally terminate the UK's withdrawal from the European Union. They argued that members of the UK Parliament require confirmation on this point to allow them to make an informed choice with regard to the “meaningful vote” on the Brexit deal in terms of section 13 of the European Union (Withdrawal) Act 2018. The argument goes that, even if presented with a binary choice by the Government between the Brexit deal as negotiated and a “no deal” exit from the EU, Parliament could vote for a third option – revoking Article 50 – leading to the termination of the Brexit process. The argument also obviously has important consequences for the “People's Vote” campaign, which seeks a second referendum on the UK's departure from the EU, with the implication that the UK would revoke Article 50 if the public voted to remain.3 The UK...

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