Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer

“It is instructive that Article 50 started life in the so-called Constitutional Treaty, which it may be remembered was abandoned. The archive shows that some forty nine amendments were proposed in relation to this provision, around half of them suggesting its complete deletion on grounds that such a clause was contrary to the Treaty’s stated goal of ever closer union, or that it was unnecessary given the Vienna Convention on International Treaties, or both. Hidden away amongst these proposed amendments is one from the MEPs Olivier Duhamel and Elena Paciotti proposing the excision of the phrase “in accordance with its own constitutional requirements”, on the grounds that whether or not the government of the withdrawing State is respecting its own constitution “can’t be the Union’s problem” (I translate from the French). Although Professor Duhamel and Ms Paciotti’s proposal was never taken up, I respectfully agree with its sentiment. This should never have been made a Union problem. But it was, and, like it or not, that makes it the Court of Justice’s problem too.”

UK Constitutional Law Association

richard-langI’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…

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