In an analysis of the Inner House of the Court of Session’s decision, former first parliamentary counsel Sir Stephen Laws argues that the Court of Session’s judgment is an unconstitutional intervention into parliamentary proceedings, which is arguably harmful to the national interest, clearly departs from the proper judicial function and violates parliamentary privilege.

Among other things, he sets out how:

• Wightman v Secretary of State for Exiting the European Union is yet another example, like the Miller case, of participants in an essentially political dispute seeking a judicial ruling that they hope will produce a tactical, political advantage for their side of the argument.
• The timing of a reference has consequences for the UK’s negotiations with the EU. These are highly political matters which ought to be for the government - accountable to Parliament - to decide for itself, not to be taken over and pre-empted by the courts.
• The provision of unsolicited legal advice to Parliament is an inappropriate intrusion by the courts into what should be the exclusive business of Parliament.
• The reference to the CJEU in the Wightman case is an unwarranted interference with parliamentary proceedings which involves a usurpation of functions that properly belong to Parliament alone and is an inappropriate and unconstitutional criticism of Parliament.
• The Wightman proceedings were the product of an extended forum-shopping expedition that had already taken in London, Dublin and the Netherlands. The fundamental principles of the UK constitution should not be the plaything of tactical forum-shopping around the UK and Europe.

Sir Stephen said: “The decision of the Inner House in the Wightman case is highly regrettable and verges on the absurd. It should have refused jurisdiction. Constitutionally, the courts should avoid being drawn into what are essentially political disputes, unless there are overwhelming legal reasons why they cannot avoid it.

“It is Parliament that has the responsibility and the right to determine both the factual and the legal premises on which it makes decisions and, in particular, on which it exercises its legislative functions. There may be consequences if it gets them wrong; but it is not the function of the courts to ensure, in advance, that Parliament gets them right.”

Commenting on the Supreme Court’s refusal to grant the UK government permission to appeal against the Inner House’s interlocutors, Professor Richard Ekins, head of Policy Exchange’s Judicial Power Project, said: “The UK Supreme Court reasoned that the Scottish court’s reference to the CJEU was a preliminary ruling rather than a final judgment. This may be formally true but fails to recognise that the whole point of this litigation has been to secure a reference to the CJEU and therefore to influence future parliamentary proceedings in an unconstitutional way.”

He added: “The Supreme Court has been unable to rule on these fundamental matters by reason of the form of proceedings and by the Court of Session’s earlier refusal to grant leave to appeal.

“Next week’s hearing before the CJEU will, as Sir Stephen’s paper argues, involve putting both the UK and member states in the wholly unfair position of having to take sides in a dispute that does not yet exist.

“Each will be unable to put proper arguments on the merits because each will have an interest in the outcome that is at this stage only theoretical and speculative.

“This whole litigation confirms the risks of courts abandoning the principled limits on their constitutional function.”

Read the report here