First published by Business HQ, Lawyers 2019 on 7 November 2019
IF the past 12 months have been defined by the sights and sounds of Tory politicians trying to secure their version of Brexit, for the Scottish legal profession the year has been defined by ensuring those politicians have been held to account.
From bringing challenges on whether the UK can revoke Article 50 without the say-so of the other EU member states to questioning whether it was lawful for Prime Minister Boris Johnson to suspend Parliament, it is Scottish lawyers – and the Scottish courts – that have been on the front foot. For Balfour & Manson chairman Elaine Motion, the instructing solicitor on all four Brexit-related cases that have been heard in the Court of Session, the year has been the stand-out of any in her career.
“If someone had told me a year ago that it was going to be like this I’d have said ‘get away’,” she says.
“It’s just a year since we were in the Court of Justice of the European Union and I didn’t think it could get any better than that, but it’s been incredible.
“The public engagement has been amazing and that makes me so immensely humbled but also so excited because people have engaged in our constitution, which had been snoozing for years.”
The case that went to the European court was the first of the Brexit matters Ms Motion worked on, instructed by a cross-party claimant group made up of MPs, MEPs and MSPs in addition to Good Law Project founder Jolyon Maugham QC. As with all the other matters she has worked on since, the advocacy was handled by Aidan O’Neill QC, a long-time collaborator that Ms Motion has partnered with on countless boundary-pushing public-law cases over the past two decades.
The question the group was seeking to clarify was whether the UK Government could unilaterally revoke the letter it sent to the EU to trigger Brexit or whether it would need the agreement of the bloc’s 27 other member states to do so. Though in 2017 the Supreme Court had been told by lawyers representing anti-Brexit campaigner Gina Miller that agreement would be required, Ms Motion and her colleagues begged to differ.
“We went to Europe to ask can we unilaterally revoke or do we need permission,” Ms Motion explains.
“What we had to do was highlight that the first Miller case that went to the Supreme Court was wrong on that point when they told the court it was agreed that it could not be unilaterally revoked.
“We thought it was hugely important for politicians to know; they needed to know the answer if they were going to do their jobs properly.”
When the European court agreed – and the Court of Session later followed that decision – it was significant for Ms Motion not just because it meant her side had won, but because it had made a little bit of history in doing so too.
“It was the first time ever they had pulled a full court [of 15 judges] together in Europe for a preliminary ruling,” she says. “That’s a moment I’ll never forget.”
Not that that was the only first Ms Motion and her team managed to pull off in the last year, with a case they brought for claimants including SNP MP Joanna Cherry QC seeing the Supreme Court break with tradition in the way its president, Lady Hale, delivered her and her colleagues’ eagerly anticipated and highly publicised decision.
That case, which argued that Prime Minister Boris Johnson had acted unlawfully when he suspended parliament for five weeks in the run-up to the Brexit deadline, had initially been rejected when it went before Lord Doherty in the Outer House, but the Inner House reversed that decision and the 11-strong bench at the Supreme Court agreed.
“It was an absolute delight to get three such amazing opinions [from Inner House judges Lord Brodie, Lord Drummond Young and Lord President Lord Carloway] and the Supreme Court was sublime,” Ms Motion recalls.
“When we were in the Supreme Court, the way the questions were going, we thought and really hoped we had won, but for the first time ever the court didn’t issue its opinion to the parties before so no one knew.
“As Lady Hale went on [delivering the court’s decision] we picked up the vibes, but what we didn’t know was whether they would go as far as we wanted them to go; that’s what they did and they struck it out [the Government’s appeal] completely.
“In a way we have to say thank you to Mr Johnson for allowing constitutional law to be dusted off.”
Since that decision was handed down in September Ms Motion and her team have continued to bring cases designed to ensure the route to Brexit is a legally sound one, with Dale Vince – the owner of green energy company Ecotricity – instructing them to ask the Court of Session to enforce the provisions of the Benn act while most recently Mr Maugham asked them to attempt to have Mr Johnson’s withdrawal deal declared void.
In the latter case it was argued that the agreement Mr Johnson negotiated with Brussels could not be pursued because it breaches tax laws introduced by Commons leader and arch Brexiteer Jacob Rees-Mogg in what was seen by many as a bid to ensure the Irish backstop was rendered useless. Though Lord Pentland threw out the case on the basis it was “misconceived and unjustified”, Ms Motion said there is still scope to appeal.
Judgment in the Vince case, meanwhile, has been continued because, although the Prime Minister did comply with the Benn act by asking Brussels for a Brexit extension when he failed to get his deal passed by October 19, he chose not to sign the letter in which the request was contained. That, Ms Motion believes, “comes very close to frustrating the act”.
“We said we would continue that case to make sure he [Mr Johnson] behaves,” Ms Motion says. “We’ll bring it back to court if we need to.”
Although these cases have seen the Scottish courts play a vital role in bringing clarity to questions relating to the UK constitution, there have been some perhaps inevitable grumblings about how far judgments handed down in the Scottish courts could or should reach. While that is to be expected from some sections of the UK press, the sense that decisions made in the Court of Session do not hold sway elsewhere in the UK has been strengthened by the fact that a number of cases almost identical to the ones Ms Motion has already brought have also been raised in England and Northern Ireland.
That notion was firmly put to bed last month, though, when the Court of Appeal for England and Wales dismissed an action brought by civil rights group Liberty on the grounds that the same issue had already been dealt with in the Vince case. The organisation had gone to court with the aim of proving the Prime Minister had to ask for a delay to Brexit if his deal was rejected by Parliament, but a bench made up of the Lord Chief Justice Lord Burnett, the Master of the Rolls Sir Terence Etherton and the president of the Queen’s Bench Division Dame Victoria Sharp refused to hear its case.
Noting that the Withdrawal Act applies to all three legal jurisdictions in the UK, the judges stressed that “the courts of each jurisdiction (England and Wales, Scotland, Northern Ireland) have competence to hear and determine public law challenges [….] which seek to enforce the act and prevent action which frustrates it in the sense understood in public law”.
“In each of the three jurisdictions there is scope for decisions to be made at first instance and then at an appellate level; and from each there may be an appeal to the final court of appeal of the United Kingdom, namely the Supreme Court,” they said.
“In our judgment it is wrong as a matter of principle for litigants to press for determination of issues which are already being litigated in another jurisdiction within the United Kingdom in public law cases such as this.
“It would be wrong for the same matters to be litigated in parallel in England and Wales and at the same time in one of the other jurisdictions.
“The Scottish courts are now the appropriate forum for all matters which arise in these proceedings to be litigated and respect must be paid to their decisions.”
For Ms Motion, their words served to underline just how important the past year has been, not only for herself and her firm, but for the entire Scottish legal system too.
“This has been huge for Scottish law – it has put the profession and our courts firmly on the map,” she says.
“We got a lot of comments from down south that [as the cases were heard in] a Scottish court they don’t matter or they don’t affect England, but they do.
“This has been massive and it has given the Court of Session even more gravitas and recognition than it had before.”