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Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62

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Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62


21 September 2018

On 29 March 2017 the United Kingdom gave notice to the European Council under article 50(2) of the Treaty on European Union of its intention to withdraw from the European Union. The petitioners, all but one of whom are members of the UK, Scottish or European parliaments, raised proceedings for judicial review seeking a reference to the Court of Justice of the European Communities to determine the question whether the notice could be revoked unilaterally by the UK acting in good faith. The government argued among other things that the issue is hypothetical and academic, since it does not intend to seek to revoke the notification. Nor has Parliament instructed it to do so, and as a matter of fact there is nothing to suggest that it will.

At first instance, Lord Boyd of Duncansby held that the issue was hypothetical and academic. He also held that the subject matter of the petition involved an encroachment on parliamentary sovereignty and was therefore outwith the court’s jurisdiction. He accordingly refused to make a reference to the Court of Justice.

The petitioners appealed Lord Boyd’s decision to the Inner House. The Inner House has unanimously decided to allow the appeal, overturning the decision of Lord Boyd at first instance.  The Inner House has determined the issue not to be hypothetical and academic, that there is no encroachment on parliamentary sovereignty and that the matter did fall within the court’s supervisory jurisdiction. Accordingly, the Inner House has decided to make a reference to the Court of Justice for a preliminary ruling as sought by the petitioners.

David Johnston QC of Axiom and Andrew Webster QC represented the respondent, the Secretary of State.  David Welsh, advocate, of Axiom was junior counsel for the petitioners and reclaimers alongside Aidan O’Neill QC.