Brexit, the Revocation of Article 50, and the Path Not Taken: Wightman and Others for Judicial Review against the Secretary of State for Exiting the European Union

The Supreme Court in Miller ¹ held that the UK Government could not trigger Article 50 of the Treaty on European Union to initiate the UK's withdrawal from the European Union without Parliament's consent. Consequently, Parliament enacted the European Union (Notification of Withdrawal) Act 2017 (“2017 Act”) to grant the Prime Minister (PM) the power to trigger Article 50. Theresa May accordingly gave notification of the UK's intention to withdraw on 29 March 2017. The UK is due to leave the EU on 29 March 2019.

Unresolved in Miller was whether an Article 50 notification could be revoked. The Supreme Court largely ignored the issue because it was common ground between the parties that such notifications are irrevocable.² A group of Scottish politicians has since raised this issue in the Scottish courts in Wightman.³ The petitioners sought judicial review of the UK Government's position on the revocability of Article 50, seeking a referral to the Court of Justice of the European Union (CJEU) on the matter as a question of EU law. In the Outer House of the Court of Session, Lord Boyd of Duncansby dismissed the petition. Referral to the CJEU was accordingly not sought, leaving the question of revocability unanswered.