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Peter Sellar: Brexit from a Public Law Perspective

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Peter Sellar: Brexit from a Public Law Perspective


01 November 2016

The following article appeared in The Scotsman’s Scottish Legal Review, 3 November 2016.

Let it not be forgotten that we are still very much in the European Union. EU public law life goes on despite the 23 June vote. While we wait for the shape Brexit will take, EU law applies, is enforced, and is therefore subject to legal challenge. The cases currently pending before Scottish courts will continue to run on the EU arguments raised, and new ones will be raised as appropriate.

So practitioners should continue challenging awards of public contracts if there has been a perceived breach of the regulations and EU law (see, for example, Boston Scientific Ltd v Common Service Agency); lawyers should look forward to the Court of session’s application of the CJEU’s ruling in the Scotch Whisky Association v Lord Advocate case; and in general, we should all continue to avail ourselves of the myriad remedies that have existed – but not oft enough been used -  since 1973 including challenges of state aid, direct judicial review applications to the CJEU and preliminary references from any of our courts and tribunals.

And once Brexit finally assumes a more specific shape, who knows, may be it will be subject to challenge in a Scottish court.

Peter Sellar, Axiom Advocates