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The case concerns 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 admissibility of these Questions which amount on any view to a request for an “advisory opinion”, on the basis that the CJEU has long refused for very good reasons (a) to answer hypothetical questions; or (b) to provide advisory opinions.
Any true dispute about the meaning of Article 50 (which is a provision operating on the inter-state plane) would have to be between the UK and the remaining EU Member States (EU27). The Questions are hypothetical for two very simple reasons. First, 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 such revocation is simply not in any sense meaningfully in prospect. Second, the reaction of the EU27 and EU institutions to any such imagined revocation is unknown. So, even were the EU27 to take the view that their consent was required, they might agree to it as proposed in any event. This means that the terms of any “dispute” are theoretical without the full facts and context of: (a) a hypothetical revocation being known; and (b) the reaction of the EU27 and EU institutions to that particular hypothetical revocation being clear.
The CJEU has over many years consistently refused to answer questions that are truly hypothetical. Whilst it is deferential to national court views that the questions require answering for a domestic dispute before it, it will test that question for itself and refuse to answer the questions referred if it is clear that there is no domestic dispute to which the questions are relevant, or the domestic proceedings are contrived. Likewise, the CJEU has long refused to provide advisory opinions on questions of EU law. There are compelling reasons in the Treaties for such a stance. The Treaties make provision for the CJEU to provide advisory opinions, but only in strictly limited cases: the opinion must concern the legality of a proposed international agreement; and the opinion must be sought by an EU Member State or institution, rather than a private person. To allow national proceedings to be used as a route to circumvent these limitations would be a misuse of the preliminary reference procedure.
These CJEU rules on admissibility are a form of judicial self-restraint and (where dealing with public law or constitutional matters) a reflection of the principle of the separation of powers, that prevents the judiciary becoming inadvisably involved in political debate. Comparative constitutional law shows that other Supreme Courts (the US, Canada, Ireland, Germany) either forbid or strictly limit the answering of advisory opinions (and police the limits of such advisory opinions to prevent circumvention by other procedures); and apply strict self-limiting rules to prevent “unripe” or hypothetical disputes from being raised before them.
Nothing about the “Brexit context” of this case detracts from such principles.