Brexit and the Court of Session – again

In Sunday’s round-up, we noted that the Inner House of the Court of Session had refused the Government leave to appeal to the Supreme Court against its decision in Wightman, Reclaiming Motion by Andy Wightman MSP and Others Against Secretary of State for Exiting The European Union [2018] ScotCS CSIH 62 to refer to the European Court of Justice for a preliminary ruling the question as to “whether, when and how the notification [under Article 50]…can unilaterally be revoked”. 

In a written statement of reasons published by Scottish Legal News, the Lord President said that, in view of the fact that the delay caused by an appeal to the UKSC would probably make it impossible for the CJEU to answer the question in the reference in advance of the prospective parliamentary vote: “Permission would, in short, render the reference, and indeed the petition, academic. For this reason, permission to appeal must be refused.”

Since then, things have moved on. Jolyon Maugham QC tweeted:

Which raises a very interesting question: even if permission to appeal is granted, does the Supreme Court have the power to direct the Court of Session to withdraw its referral?

The Court of Session Act 1988, as amended by the Courts Reform (Scotland) Act 2014, declares at s.40 (Appeals to the Supreme Court):

“(1) An appeal may be taken to the Supreme Court against a decision of the Inner House mentioned in subsection (2), but only—

(a) with the permission of the Inner House, or

(b) if the Inner House has refused permission, with the permission of the Supreme                    Court.

(2) The decisions are—

(a) a decision constituting final judgment in any proceedings,

(b) a decision in an exchequer cause,

(c) a decision, on an application under section 29, to grant or refuse a new trial in any proceedings,

(d) any other decision in any proceedings if—

(i) there is a difference of opinion among the judges making the decision, or

(ii) the decision is one sustaining a preliminary defence and dismissing the proceedings.

(3) An appeal may be taken to the Supreme Court against any other decision of the Inner House in any proceedings, but only with the permission of the Inner House.”

On the face of it, the permission sought does not appear to be covered by any of the circumstances provided for in s.40(2) – the decision to ask the CJEU for an advisory opinion was unanimous – and the Inner House has not given its permission for an appeal under s.40(3) against “any other decision”.

But we’ll see. (And if the connexion between the subject-matter of this post and “law & religion” appears tenuous – or, indeed, non-existent – I can only plead that membership of the EU touches domestic law in all sorts of areas that have implications for religious organisations: employment law and taxation to name just two.)

Cite this article as: Frank Cranmer, "Brexit and the Court of Session – again" in Law & Religion UK, 12 November 2018, https://lawandreligionuk.com/2018/11/12/brexit-and-the-court-of-session-again/

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