On 10 December 2018 the Court of Justice of the European Union ruled in Wightman v Secretary of State for Exiting the European Union that the United Kingdom was entitled unilaterally to revoke the notice of its intention to leave the European Union delivered under article 50 of the Treaty on European Union.
The Full Court of 28 judges ruled that article 50 had to be interpreted as entitling the United Kingdom “to revoke that notification unilaterally, in an unequivocal and unconditional manner” after deciding to do so “in accordance with its constitutional requirements”. That revocation would be possible at any time before the entry into force of a withdrawal agreement or the expiry of the two-year period under article 50.
The Court confirmed that, if the United Kingdom did revoke its notice, that would bring “the withdrawal procedure to an end” and confirm the United Kingdom’s ongoing membership of the European Union “under terms that are unchanged as regards its status as a Member State”.
The judgment explained that the European Union aims, through the common pursuit of liberty and democracy, to eliminate the barriers which divide Europe. Nationals of a Member State have the fundamental status of citizens of the Union, benefiting from the right to free movement and other, fundamental rights set out in the Charter. It would be contrary to those rights and to those values of liberty and democracy if article 50 were interpreted as frustrating the sovereign choice of a Member State to remain in the Union.
The same conclusion followed as a matter of public international law, which had been taken into account in the preparatory work of the Treaty establishing a Constitution for Europe: article 68 of the Vienna Convention on the Law of Treaties provided in clear and unconditional terms that a notification of withdrawal from a treaty could be revoked at any time before it took effect.
The judgment was given on a reference from a judicial review brought in the Scottish courts by a cross-party group of Parliamentarians. Stephen Donnelly appeared for the interveners, Chris Leslie MP and Tom Brake MP, led by Gerry Facenna QC, Morag Ross QC, and Anneli Howard, instructed by Jennifer Jack of Harper Macleod LLP and John Halford of Bindmans LLP. The same team was also instructed in successfully opposing the Secretary of State’s application to the Supreme Court for permission to appeal the reference to the Court of Justice.