The Court of Justice of the European Union has published the Advocate General’s Opinion in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union.

In his opinion, Advocate General Campos Sánchez-Bordona concludes:

“When a Member State has notified the European Council of its intention to withdraw from the European Union, Article 50 of the Treaty on European Union allows the unilateral revocation of that notification, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.”

Dismissing the UK Government’s argument that the issue is hypothetical and merely theoretical, the Advocate General’s view is that a unilateral decision by the UK to remain in the European Union in the face of an unsatisfactory Brexit, is a valid option under EU law:

“If the Court accepts that the notification of the intention to withdraw may be revoked unilaterally, the United Kingdom could communicate such revocation to the European Council, and thereby remain a member of the European Union. As the United Kingdom Parliament has to give its final approval, both if a withdrawal agreement is reached and in the absence of that agreement, several members of that parliament consider that if the notice of the intention to withdraw were revocable, this would open a third way, namely remaining in the European Union in the face of an unsatisfactory Brexit. The referring court appears to adopt that position, reasoning that the Court’s answer will have the effect of clarifying the precise options open to members of the United Kingdom Parliament when casting their votes.”

The Advocate General’s proposed answer adopts the answer suggested by Chris Leslie MP and Tom Brake MP, who were represented by Gerry Facenna QC and Anneli Howard, together with Scottish counsel Morag Ross QC and Stephen Donnelly, instructed by Harper Macleod and Bindmans. Their written submissions to the Court are published here.

The Advocate General’s Opinion is not binding on the Court of Justice; it provides an independent, legal view which the Court may or may not follow. Judgment of the Court of Justice is expected before Christmas.

See The Court of Justice of the European Union press release here.

On Tuesday 27 November, Gerry Facenna QC and Anneli Howard appeared before the Full Court of Justice of the European Union on behalf of two Members of Parliament, Chris Leslie MP (Lab) and Tom Brake MP (Lib Dem) in the urgent preliminary reference case concerning the UK’s Article 50 notice. The Court of Session in Scotland referred the question of whether the Article 50 notice could be unilaterally revoked by a Member State and, if so, on what terms and with what effect.

The hearing before 27 Judges involved extensive debate and questions on admissibility, the jurisdiction of the CJEU to accept preliminary references seeking prospective guidance on the law, and the legality under EU law of any decision by the UK to change its mind about Brexit. The President of the Court observed that the case was a constitutional landmark moment for the EU.

The MPs, together with the Petitioners (a group consisting mainly of Scottish politicians including an MP, MSPs and MEPs) argued that, under the EU law, a Member State that has notified its intention to leave still remains free to change its mind unilaterally, and remain within the EU, provided it is acting in good faith. The UK Government invited the Court to dismiss the reference on the basis that it was hypothetical. The EU Council and Commission accepted that an Article 50 notice was revocable as a matter of law, but took the position that this could only be done with the consent of the other 27 Member States on the European Council.

The Advocate General has indicated that he will hand down his opinion on 4 December 2018. The Court’s judgment is expected to follow shortly afterwards.

Gerry Facenna QC and Anneli Howard acted alongside Scottish counsel Morag Ross QC and Stephen Donnelly, instructed by Jennifer Jack of Harper Macleod and John Halford of Bindmans.  Details of the intervener’s pleadings and oral speech can be found here.

Today, in proceedings brought by the CMA, the High Court (Mr Justice Nugee) has made an enforcement order under sections 217 and 219A of the Enterprise Act 2002 against viagogo, the operator of a secondary ticketing platform.

The Court had been due to hear an application by the CMA for an interim enforcement order this week, but the parties agreed on a form of final enforcement order which will now secure a series of legally-binding consumer protection measures to be given effect by January 2019.

The measures put in place by the order relate to a number of issues, such as the need to provide information about business sellers trading through viagogo’s website, seat numbers, face value, whether the ticket is subject to any restrictions on its use, restrictions on “pressure selling” messages, provisions relating to the operation of viagogo’s guarantee and customer services functions, and the practice of “speculative selling” before events actually go on sale. The case was brought under both domestic and EU consumer protection rules.

More information about the case is available here and here.

Rob Williams, Azeem Suterwalla and Jack Williams acted on behalf of the Competition and Markets Authority (the CMA).

The Supreme Court has today refused permission for the Secretary of State for Exiting the European Union to appeal against the decision of the Court of Session in Scotland to seek a ruling from the CJEU on the revocability of the Article 50 Notice.

This means that the accelerated preliminary reference will proceed before the CJEU. The oral hearing is next Tuesday, 27 November.

Monckton Chambers’ Gerry Facenna QC and Anneli Howard, together with Scottish counsel Morag Ross QC, are acting for Liberal Democrat Brexit Spokesperson Tom Brake MP, and Labour’s Chris Leslie MP, who argue that EU law permits a Member State unilaterally to revoke a notification it has given under Article 50 TEU if, in accordance with its own constitutional arrangements, it decides to remain within the EU.

See previous news items 08 Oct here and  21 Sept here.

Warwickshire County Council v Halfords Autocentres Ltd [2018] EWHC 3007 (Admin)

The High Court has held that, where a trader acts misleadingly during a test purchase by a local trading standards officer, it breaches consumer protection law, even if the officer is not acting as a consumer within the meaning of the relevant legislation: Warwickshire County Council v Halfords Autocentres Limited and Competition and Markets Authority [2018] EWHC 3007 (Admin).

In February 2017, a trading standards officer employed by Warwickshire County Council booked a vehicle in for a service at the Stratford-upon-Avon branch of Halfords. The vehicle deliberately had a number of faults and the booking was a “test purchase” designed to assess the quality of the service facility offered by Halfords. Without knowing that the customer was in fact a trading standards officer, Halfords purported to service the vehicle and charged the officer for a full service. However, when the vehicle was examined by the Council, it emerged that various faults had been neither rectified nor reported by Halfords.

The Council brought a prosecution against Halfords, alleging that it had committed an offence under the Consumer Protection from Unfair Trading Regulations 2008 by issuing an invoice which misleadingly claimed that a full service had been carried out when it had not. However, at the close of the prosecution case, the District Judge in the Magistrates Court accepted an application of no case to answer, holding that the officer was not a “consumer” for the purposes of the 2008 Regulations and that Halfords had not therefore engaged in a “commercial practice” within the meaning of those Regulations.

The Council appealed by way of case stated and, since the Judge’s interpretation threatened to undermine the operation of the 2008 Regulations to the detriment of consumers, the CMA intervened in the appeal.

In an important judgment issued on 9 November 2018, the Divisional Court (Lord Justice Hickinbottom and Mr Justice Jay) overturned the Judge’s ruling, accepting the CMA’s argument that, even if the officer was not a consumer (which the Court did not determine), the conduct engaged in by Halfords constituted a commercial practice on a proper construction of the 2008 Regulations. In reaching its conclusion, the Court drew upon the Unfair Commercial Practice Directive (2005/29/EC), from which the Regulations are derived, observing that the Directive sought to secure a “high level of consumer protection” and was therefore “broadly framed”. It accepted the CMA’s submission that the construction adopted by the Judge was liable to undermine the ability of the CMA and trading standards authorities to enforce consumer protection law through the use of test purchasing. The Court held in conclusion that a commercial practice for the purposes of the 2008 Regulations “may be constituted or derived from a test purchase made of a product (including a service) that is generally promoted and intended for purchase by consumers, even where the purchaser may not himself be a consumer”.

Ben Lask, who is Standing Counsel to the CMA, acted for the CMA. The full judgment can be read here.

Social enterprise company Central Surrey Health (CSH) has won the first stage in a public procurement challenge against clinical commissioning group, NHS Surrey Downs CCG.   The case centred on whether the commissioners could continue with a contract CSH had originally been part of, but from which they claim they were subsequently “marginalised”.

In yesterday’s High Court ruling the judge decided that automatic suspension was to be maintained until trial. This means that NHS Surrey Downs CCG cannot continue with the contract award for the adult community health services to the IDEEA Partners. The newly awarded contract had been due to start this month but in light of the legal action the CCG extended incumbent provider CSH’s contract until February 2019.

It was successfully argued that if the defendant had breached the principles of transparency and equal treatment, damages would not be an adequate remedy for the claimant and the balance of convenience favoured maintaining the suspension, resulting in automatic suspension being maintained until trial.

Michael Bowsher QC and Ligia Osepciu are representing Central Surrey Health.

London Borough of Haringey v Simawi & Anor [2018] EWHC 2733 (QB)

The High Court has held that the statutory rules governing the right to take over a social housing tenancy when the former tenant dies do not discriminate unlawfully between widows and divorcees contrary to Article 14 of the European Convention on Human Rights (ECHR): London Borough of Haringey v Simawi and Secretary of State for Housing, Communities and Local Government [2018] EWHC 2733.  Ben Lask acted for the Secretary of State.

The Defendant’s mother was the secure tenant of a property owned by the local authority.  She had succeeded to the tenancy automatically upon the death of her husband in 2001 and, since she was therefore a “successor” for the purposes of the Housing Act 1985, the Defendant was unable to succeed to the tenancy when she died in 2013.  The 1985 Act allows for only one statutory succession before the property reverts to the local authority for reallocation to others in need of accommodation.  In certain circumstances, however, a tenancy can pass from one person to another without the one statutory succession being “used up”.  An example is where it is assigned by the Court in divorce proceedings, the result being that the son of a secure tenant who had acquired the tenancy upon divorce could (unlike the Defendant) succeed to the tenancy when she died.

The Defendant resisted a claim for possession brought by the local authority, arguing that the rules on succession discriminated unlawfully between widows and divorcees, such that they contravened Article 14 of the ECHR, in conjunction with Article 8.  Since he sought a declaration of incompatibility under the Human Rights Act 1998, the Secretary of State was joined to the proceedings.

In a judgment handed down on 19 October 2018, the High Court (Mr Justice Murray) rejected the Defendant’s case, accepting the Secretary of State’s submission that the statutory rules were objectively justified.  In particular, since the rules ensured that the one succession rule did not act as a deterrent to divorce, including in cases of domestic abuse, they had a legitimate purpose and satisfied the relevant test for proportionality (i.e. they were not “manifestly without reasonable foundation”).  As a result, the Defendant’s application for a remedy under the Human Rights Act 1998 was refused.

The judgment can be read here.

The CJEU has ordered that the Scottish preliminary reference in the Wightman case (C- 621/18) should be dealt with under the accelerated procedure in Rule 105 RP. A deadline of 30 October has been set for written observations from the parties, institutions and Member States. The hearing will be on 27 November 2018.

The Inner House of the Court of Session referred the case to the CJEU as a result of the petition brought by Andy Wightman MSP and others, including Joanna Cherry MP. Monckton Chambers’ Gerry Facenna QC and Anneli Howard are continuing to represent pro bono Liberal Democrat Brexit Spokesperson Tom Brake MP, and Labour’s Chris Leslie MP, along with Scottish Counsel Morag Ross QC, instructed by John Halford at Bindmans LLP and Jennifer Jack of Harper Macleod. They will be appearing at the forthcoming hearing in Luxembourg.

See previous news item here.

The Inner House of the Court of Session has decided to make a reference to the CJEU for a preliminary ruling on the question of whether the United Kingdom can withdraw the notification of its intention to leave the EU under Article 50 TEU.

The petition was brought by Andy Wightman MSP and others, including Joanna Cherry MP. Monckton Chambers’ Gerry Facenna QC and Anneli Howard are providing pro bono advice and assistance to Liberal Democrat Brexit Spokesperson Tom Brake MP, and Labour’s Chris Leslie MP, who are represented in the Scottish proceedings by Morag Ross QC, instructed by John Halford at Bindmans LLP and Jennifer Jack of Harper Macleod.

On 5 June 2018 the Outer House of the Court of Session (Lord Boyd) refused to make a reference to the CJEU on the basis that the question of revocation of the Article 50 notice was hypothetical. However, in the decision handed down today, the Inner House (the Scottish appeal court) has unanimously held that the issue is not hypothetical and should be answered by the CJEU, in particular so that MPs who make the final decision on the Brexit process can be fully informed as to the options available to the UK, including whether revocation of the Article 50 notice is legally possible, and under what conditions.

In three separate Opinions the Inner House concludes, unanimously, that the issue properly falls within the scope of the Court’s jurisdiction, and constitutional role, to determine non-hypothetical questions of law, and that resolving the legal issues as to the effect of Article 50 TEU does not raise any issue of infringement of parliamentary privilege.

The Inner House proposes to ask the CJEU the following question:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU”.

The CJEU will be asked to expedite the request, and is likely to have to consider a number of arguments about the meaning and effect of Article 50 TEU, which have been debated by numerous academics and commentators and were the subject of the so-called “Three Knights Opinion” whose authors include Gerry Facenna QC and former head of Monckton Chambers Sir Jeremy Lever KCMG QC.

The Inner House Opinions contain a number of important observations on the constitutional role of the Courts, the non-hypothetical nature of the important issues facing parliamentarians who must vote on the Brexit process, and the need for the Courts to clarify the legal options open to the United Kingdom before Parliament takes the final decision on Brexit.