Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer – UK Constitutional Law Association

‘I’m glad if it was the Lord Chief Justice’s concern about the reversibility or otherwise of the Article 50 procedure which catalyzed the current debate on whether the Article 50 litigation needs a reference to the Court of Justice, as has been rumoured, but on the face of last week’s judgment it seems that the parties at least were in agreement on the point after all: it is not (they say) reversible: R (Miller) v Secretary of State for Exiting the EU, para 10 (hereinafter “Miller”). However, I believe that there is a far simpler, and so far as I can see compulsory, route from the Supreme Court to Luxembourg in this matter, assuming that the Crown does indeed appeal today’s ruling to that court, and that is that (a) the case turns on the interpretation of the phrase “in accordance with its own constitutional requirements” from Article 50(1) of the Treaty on European Union (“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”), and (b) interpretation of the Treaty, or indeed any EU Law, is the exclusive competence of the Court of Justice of the EU (“CJEU”).’

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UK Constitutional Law Association, 8th November 2016