Litigating Brexit: a guide to the case law

Professor Steve Peers, University of Essex

The following (initially posted on 24 July 2020) is a guide to the litigation relating to the Brexit process. I’ll update it regularly as cases develop, and indicate the latest update here at the start of the blog post. For further reading, see this House of Commons Briefing Paper, which has additional details of cases and further links to judgments and commentary (although note it is up to date to 1 November 2019).

(Update 27 July 2020: clarified what the Webster judgment ruled in s 3; links to Dutch court rulings added in s 10. 28 July 2020: added reference to English version of July 2020 Shindler judgment in s 10. 6 Sept 2020: updated s 12 on litigation re Advocate-General; s 10 Walker judgment was not appealed. 10 Sept 2020: updated s 11 on possible litigation on internal market bill; updated s 12 re Advocate General)

1              Referendum franchise and conduct

Harry Shindler challenged the exclusion of UK citizens living abroad for more than 15 years from the voting franchise for the referendum. He lost in the High Court (28 April 2016) on the grounds that while the voting limit engaged EU law, it did not limit free movement rights; even if it did, those limits would be justified. He appealed to the Court of Appeal (20 May 2016), which ruled that the voting limit was outside the scope of EU law and in any event did not limit free movement rights. The Supreme Court refused leave to appeal (24 May 2016) on the grounds that if EU law did apply, there was no limit on free movement.

Note that the right to free elections in the first protocol to the European Convention on Human Rights does not apply to referendums, unless they are de facto general elections: see the summary of the case law (para 4). Nor does it generally require states to extend voting rights to their citizens who live abroad: see, for instance, the judgment of the European Court of Human Rights in Shindler v UK.

In Ball v Johnson, a private prosecution for misconduct in public office based on Boris Johnson’s comments during the referendum campaign, a district judge originally issued a summons on 29 May 2019. However, this was quashed by a judgment of the High Court on 3 July 2019 (see discussion here).

The issue of breaches of election spending law during the referendum was also the subject of several decisions of the Electoral Commission and litigation. On some of these cases, see section 4.2 of the House of Commons Briefing Paper.

2              Parliamentary approval of leaving the EU

In Miller I (24 Jan 2017), the Supreme Court, following the High Court (3 Nov 2016), ruled that the decision to leave the EU could not purely be an act of the executive, but had to be approved by Parliament (see discussion here). Parliament duly passed the EU (Notification of Withdrawal) Act, which conferred upon the Prime Minister the power to notify the EU of the intention to leave.

3              Validity of notification to leave the EU

In Webster, the Prime Minister’s decision to leave the EU pursuant to a power implicitly conferred by the Act was identified and upheld in a judgment of the High Court (12 June 2018). The court ruled that the Prime Minister had satisfied the obligations imposed by the Miller I judgment. See discussion on the Monckton chambers blog here.

In Wilson, it was argued that the notification was unlawful because of breaches of election spending law by the Leave campaigns (see section 1 above). Permission to bring the case was refused by the High Court on 10 December 2018; permission to appeal was refused by the Court of Appeal on 4 March 2019. 

4              Withdrawal process

Mr Shindler sued to annul the EU Council decision giving the EU Commission a mandate to negotiate the withdrawal agreement with the UK. The EU General Court (Case T-458/17, 17 Sep 2018) ruled against him (see analysis here), on the grounds that the decision did not directly affect the position of the applicants, because Brexit was caused by the decision of the UK to leave, which was not subject to approval of the EU institutions (see discussion here). The Court of Justice (Case C-755/18 P, 19 March 2019) rejected his appeal.

A further Shindler case (Case T-541/19) argued that the date of the 2019 European Parliament election should have been delayed because of the Brexit process. This action was dismissed by the EU General Court on 29 January 2020.

5              Status of the UK during the withdrawal process

The CJEU ruled in Case C-327/18 PPU RO (19 Sep 2018; a case concerning the European Arrest Warrant, discussed here) and Case C-661/17 MA (23 Jan 2019; a case concerning the Dublin asylum responsibility rules, discussed here) that during the process of negotiating to leave the EU, the UK retained all rights and obligations of EU law. See also the judgment in Case C-340/17 on the EU trade mark pending withdrawal.

6              Revocation of notification to leave the EU

The CJEU ruled in Wightman (10 Dec 2018) that the UK could withdraw the notification to leave unilaterally, up until the point when the withdrawal agreement entered into force or (taking account of extensions) the UK left the EU by virtue of the notification period running out. (See discussion of the judgment here and here; and discussion of the AG opinion of 4 Dec 2018 here) This followed a lengthy process in the Scottish courts, which eventually sent questions on the matter to the CJEU (see discussion of the domestic process here).

7              Withdrawal from the EU: impact on Scotland and Northern Ireland

The Supreme Court ruled on 13 December 2018 on the division of powers between Westminster and the Scottish Parliament as regards the process of withdrawal from the EU (see discussion here). On 12 September 2019, the High Court of Northern Ireland ruled against a number of arguments raised by McCord and others as regards the conduct of Brexit negotiations. An appeal to the Northern Ireland Court of Appeal was unsuccessful on 27 September 2019.

8              Prorogation

While the controversial prorogation of the House of Commons in autumn 2019 did not directly concern the legal aspects of the Brexit process, politically it was linked to disputes concerning Brexit. The Supreme Court ruled on 24 September 2019 (Miller II/Cherry) that the prorogation was unlawful. For analysis see here; for comments on the earlier phases of this litigation, with links to judgments, see herehere and here.

9              Extension of EU membership

The first extension of the UK's EU membership (see discussion here) was unsuccessfully challenged on the grounds that it breached domestic law (the Tilbrook litigation: see the House of Commons Briefing Paper, section 2.3). The third extension of EU membership (see discussion here) was based on the so-called Benn Act (discussed here), which required the UK government to request this extension if certain conditions were met. Since the government seemed to suggest that it would not comply with its obligations under the Act, there was litigation to enforce its obligations, although ultimately the government complied (see summary of the litigation here). 

10           UK citizens retaining EU citizenship

Three batches of cases have been brought arguing in various ways that UK citizens retain EU citizenship after Brexit. Some of them have raised other issues, in particular challenging the validity of the withdrawal agreement on other grounds.

A first batch of cases was brought before Brexit Day. In Walker, it was argued that the EU legislation exempting UK visitors from short-term visas after Brexit (discussed here) was invalid, on the grounds that it infringed the status of UK citizens after Brexit. An interim measures claim was dismissed in the EU General Court (Case T-383/19 P, 23 Oct 2019), and on appeal by the Court of Justice (Case T-789/19 P, 7 Feb 2020). The main case has now been dismissed by the EU General Court (16 June 2020; see Twitter thread). The courts have consistently ruled that the applicants lack standing, in that UK citizens as a group (even those in the EU) do have sufficient ‘individual concern’ to challenge EU legislation.

In another Shindler case (Case T-627/19), it was argued that the Commission had a legal obligation to order Member States to establish a special status for resident UK citizens. An interim measures claim was dismissed in the EU General Court (29 Jan 2020). The main case has now been dismissed in the EU General Court (14 July 2020) on the grounds that the Commission has no such powers, although this ruling can be appealed to the Court of Justice (see extracts in English).

Another batch of cases was brought before the EU courts after Brexit Day. These comprise Case T-198/20 Shindler, Case T-231/20 Price and Case T-252/20 Silver. These cases are all pending before the EU General Court. An interim measures request in the Price case was dismissed by the EU General Court for lack of standing (24 June 2020; for discussion see Twitter thread); this ruling is on appeal to the Court of Justice (Case C-298/20 P).

A third batch of cases raises this issue in the national courts (where the Price interim measures ruling suggested that they should be brought). Litigation was brought in the Dutch courts in 2018 (see discussion here): the first instance court referred questions to the CJEU, but an appeal court halted the litigation and it did not progress further. In spring 2020, the French Conseil d’Etat did not need to decide a case concerning the (now irrelevant) national legislation adopted in the event of ‘no deal’ (meaning, in this context, 'no withdrawal agreement'). A further case is set for a hearing in the Cour de Cassation in France in September 2020.

11         Withdrawal agreement

Due to concerns about the UK's government's expressed intention to breach the withdrawal agreement, set out in the UK Internal Market bill tabled in September 2020 (see discussion here, here and here), the EU Commission has raised the question of a possible legal action (extracts from the legal opinion here).

12           Miscellaneous

The EU courts have also been asked to rule on the impact of Brexit on employment contracts of a UK citizen with the EU administration, and on the position of the CJEU Advocate-General linked to the UK. In September 2020, a judge in the EU General Court suspended the appointment of the replacement for the Advocate-General until the third case, which directly challenged the appointment of her replacement, could be heard (see discussion here). However, on appeal the CJEU overruled this suspension, and the Advocate-General was replaced.

Barnard & Peers: chapter 27
Photo credit: Tom Morris, via Wikimedia Commons

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