Policy paper

Wightman and Others v Secretary of State for Exiting the European Union - application for permission to appeal to the Supreme Court

Application for permission to appeal to the Supreme Court and a summary of the Case of the Secretary of State for Exiting the European Union


Grounds of appeal


The Government sought permission from the Supreme Court to appeal the decision of the Inner House to make a reference to the CJEU. Permission was refused. However, below is a summary of our case. We have also published our grounds of appeal. 

This appeal is against the reference to the European Court of Justice (CJEU) made by the Inner House of the Court of Session in Scotland of a series of questions (“the Questions”) designed to secure “guidance” for politicians (MPs, MSPs and MEPs) on the proper construction and thus potential operation of Article 50 of the Treaty on European Union (TEU), specifically to identify whether the United Kingdom can unilaterally (i.e. without the consent of other EU Member States) revoke its Notice to leave the EU.

The United Kingdom Government contests the justiciability of these Questions, which amount on any view to a request for an “advisory opinion”, before the Courts in the United Kingdom on the basis that (a) they are hypothetical and (b) breach established constitutional principles of respect between Parliament and the Courts; and as a consequence, argues that the Questions should never have been put to the CJEU.

The Questions referred to the CJEU are hypothetical because the United Kingdom Government does not intend to revoke the Notice it has given (following the passing of the European Union (Notification of Withdrawal) Act 2017 by Parliament) and revocation is not in any sense meaningfully in prospect. No legislation is challenged and no rights are said to be adversely affected. The Questions are sought to be answered for the purposes of political debate. The Questions would in any event fall to be answered by the CJEU at the inter-state or EU institutional level in the light of the reaction of the remaining EU Member States (EU27) and the reaction of the EU27 and the EU institutions to any imagined revocation is unknown.

Also, as the questions posed are designed to influence the terms of a debate yet to be had in Parliament, considerations of Parliamentary Privilege and Parliamentary Sovereignty act as a complete and jurisdictional bar to any adjudication by the Court. If an advisory opinion is justified in this case, it would turn any subject being debated in Parliament into a topic for immediate and pre-legislative adjudication. It is impossible to identify a criterion against which to determine what would and would not be justiciable without the Courts entering the political arena. Further, the reference seeks an outcome that is not permissible under EU law. The Treaty on the Functioning of the European Union provides the means by which Member States and EU Institutions can raise before the CJEU issues about the rights and obligations of Member States under the Treaties, including disputes under Article 50. The reference is either designed or will operate to circumvent the clear limits of CJEU competence so that the answer can influence the domestic politics of a Member State.

Published 26 November 2018