Thanks for the Guardian link. Very interesting!
Though I am something of a fan of the ECJ, and everything Eleanor Sharpston QC says is (of course) correct, it does have to be read very carefully. When the Guardian quotes her as saying "We answer the questions. We don’t decide the case" I presume the reference is to the so-called preliminary rulings (which I mentioned).
Some might think that that, by itself, is misleading (though I could not possibly comment), and she no doubt said a lot more that is not quoted by the Guardian.
It is true, but as I wrote: a preliminary ruling is much more than it sounds.
You have to bear the following in mind (as I understand it):
1) If a (national) final court of appeal needs to interpret EU law in order to make a finding under national law, it must refer the relevant question to the ECJ (with some exceptions).
2. The ruling is binding on the national court.
3. The ECJ may (I think) add answers to questions that weren't asked, and may restate the questions if they were formulated inappropriately.
4. The purpose of all this is to ensure that EU law is interpreted the same way throughout the EU and help ensure the primacy/supremacy of EU law.
So the ECJ doesn't decide the case, but by telling the national court how it must interpret EU law it effectively instructs the national court how to decide major aspects of the case; it is the national court that may have to decide which national legal and constitutional provisions need to be "disapplied" to ensure the primacy of EU law.
I am sure many of the actors can be as clever as the Bundesverfassungsgericht has been in interpreting the law in a way that is compatible with reality and necessity (cf. Solange-Beschlüsse etc.).
Yes, I believe I described a theoretical scenario in another thread. A claim that the British government is acting without the necessary authority might hinge on whether notification according to Article 50 can be unilaterally rescinded. The answer is not so obvious that it can be decided without (renewed) referral to the CJEU.
@hm #19 "And MI6 -- why isn't that under Justice or Defence or something ..."
I don't know how much control the Foreign Secretary has in practice, but I imagine one of the main reasons is what I would call "compartmentalization" (Defence Intelligence under the Defence Secretary, MI5 under the Home Secretary, MI6 and GCHQ under the Foreign Secretary), though the concept seems to have gone a bit out of fashion. I presume there are links between espionage and the diplomatic service, and MI6 are, after all, responsible for foreign intelligence. You don't want them run by the same people as domestic security, and you might not want to entrust them with military secrets.
If you watched Spooks, you will know that MI5 are the good guys, protecting Brits not only from terrorists, extremists, and Russian spies but also from MI6, GCHQ, and the CIA. (;-)
Just noticed some more things:
@ B.L.Z. Bubb
#32 "Could a court issue an interim injunction, preventing the government from issuing the notice?"
I would be interested to hear from a lawyer, but I presume the Mishcon de Reya case will be asking for a declaratory judgment (see https://en.wikipedia.org/wiki/Declaratory_judgment
). AIUI this would not entail an injunction but, by declaring that the government did not have the authority to take such an action, it might have a similar effect. Another effect might be to make it manifest (to EU actors) that any such notification without involving Parliament would be in violation of a rule of internal law of fundamental importance.
@ sebastianW #14
" ... das Referendum selbst zum Gegenstand juristischer Prüfung werden ..., noch mehr aber der parlamentarische Beschluss des Austritts.
AIUI "government" was meant in the narrower sense and primary legislation by the UK Parliament is, traditionally, not subject to judicial review. I'm not sure of the extent to which that might have changed with the introduction of the concept of "constitutional" laws in relation to the EU etc. I would guess that a court may still not strike down an Act of Parliament, though it may (must) "disapply" it when it violates EU law.