A journey is a good time to gather thoughts and reflect. Having nothing to do but sit and watch the fields go by offers an opportunity for quiet reflection and deliberation. Such stillness should not be expected by the judges of the Supreme Court as they journey through the British constitution in the coming weeks – the headlines of the weekend papers make clear that their deliberations on the Miller case will not be set within a context of calm.
This is to be regretted, for the questions facing the Supreme Court are of a magnitude that cannot be overstated. They are of long term importance not only for the relationship between the UK and the EU but also internally, for democracy the UK. As important as the decision reached by the Court – whether the government must consult Parliament before art 50 is triggered – is the procedure by which that decision is reached, namely whether the Supreme Court uses Art 267 TFEU to refer a question of interpretation to the CJEU in Luxembourg.
Art 267 TFEU
Article 267 TFEU sets out the procedure whereby national judges can send questions to the CJEU for interpretation of the Treaty and adopted secondary law, and the validity of the latter. The questions sent can concern technical matters such as the classification of pyjamas or constitutional issues dealing with EU citizenship or the validity of the European Stability Mechanism.
Art 267 TFEU states that:
(1) The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty b) the validity and interpretation of acts of the Institutions (2) Where such a question is raised before a court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. (3) Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law that court or tribunal shall bring the matter before the Court of Justice.
There is no time limit associated with the procedure: the question(s) can be sent as soon as need becomes apparent to national court/ tribunal. However, this is not an appellate procedure: questions must relate to a pending dispute and be sent before a decision has been made. There is no limit to the number of questions that may be in a reference, or the number of references that a court can make prior to its decision, as long as these are new questions or might produce a different answer. The CJ may also add to the questions sent.
There is no definition in the Treaty of a ‘court or tribunal’. The guidance laid out in El Yassini stressed a number of factors, such as whether the ‘body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.’ However, even if a body satisfies all of these characteristics, it will not be seen as a court or tribunal unless it is required to determine a legal dispute or exercise a judicial function and falls within the remit of a member state.
Given its status as the Supreme Court, a question on Article 50 sent under Article 267 is unlikely to be rejected. However, given the political consequences of the question, it may not be warmly welcomed by the CJEU. Yet this would be the legally correct course of action under EU law – this is the very first time that Article 50 has been considered in any national court in the EU, and there are important questions surrounding its interpretation, in particular whether it is revocable. This issue is especially important as in Miller, the irrevocability of Article 50 played a central role in the case before the High Court: there it was held that an irrevocable Article 50 makes the need for Parliamentary involvement in its triggering crucial. However, if Article 50 is revocable, this may lead to a different conclusion. The question on revocability is thus a question of the interpretation of EU law that should be put to the CJEU under Article 267. As it is a provision of EU law, only the CJEU may interpret it.
Division of Labour
Article 267 sets out a clear division of labour: the national court determines the questions that its needs answered, the CJEU answer those questions on EU law; the national court applies this interpretation to the facts before it. The CJEU may determine admissibility but the process is driven by the national courts – it is left to the discretion of the individual judge to decide whether or when a reference should be sent, what should be asked and how the interpretation should be applied. The opportunity for the CJEU to tackle important questions such as the revocability of Article 50 can be compromised in the absence of referrals.
The Treaty states that courts of last instance must refer yet some such courts refuse to comply. A judge may ignore a request to refer, agree or refuse as in Mid Sussex Advice Bureau where Elias LJ believed that a referral asking whether a volunteer was a ‘worker’ who could access rights in the Disability Discrimination Act 1995 when read with the Framework Directive would fail. Alternatively a judge may decide not to refer because they can interpret the issue adequately themselves or to avoid delay.
Delay is inevitable – an average reference can take over one year to be addressed. Time is clearly of the essence in the Miller case so this is a practical reason for non-referral. As Miller does not concern a person in custody, the procedure préjudicielle d’urgence (PPU) in Article 267(4) TFEU cannot be used. This is a shame because the PPU removes stages found in the ordinary procedure thus can reduce the time for a reference to as little as 2 months. However, given the constitutional importance of the question – for both the UK and the EU – it is likely that the CJEU will deal with the question of revocability quickly. Continue reading