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Wightman v Secretary of State for Exiting the European Union

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Wightman v Secretary of State for Exiting the European Union

11 December 2018

The petition at the instance of Andy Wightman MSP and others reached the Court of Justice of the European Union (CJEU) and was heard by a full court on 27th November 2018, following the unanimous decision of the Inner House to make a preliminary reference ([2018] CSIH 62).

The President of the CJEU had decided that the reference would be heard under the court’s expedited procedure.

On 27th November 2018, various members of Axiom Advocates appeared before the 26 judges of the full court. Lord Keen of Elie QC, the Advocate General for Scotland, appeared on behalf of the UK Government. Morag Ross QC appeared on behalf of the Additional Parties. David Welsh, advocate, appeared as junior counsel on behalf of the Petitioners.

The full court handed down its decision on 10th December 2018 (Case C-621/18). The court has decided that the UK’s notification of withdrawal from the European Union can be revoked unilaterally. That possibility remains available until such time as a withdrawal agreement between the UK and the EU comes into force or, if no agreement has yet been reached, until the two-year negotiating period (or such other extended period) comes to an end.

The revocation, in order to be effective for EU law purposes, would require a process to be carried out in accordance with the UK’s own constitutional requirements.  The revocation would bring the withdrawal process to an end and have the effect of the UK remaining a member state of the EU on the same terms as existed prior to the lodging of the Article 50 notification.