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court of session rejects petition for preliminary reference on withdrawal of art. 50 notification February 6, 2018

Posted by Bradley in : brexit , trackback

The judgment is here. The petition is rejected because the issue raised is “hypothetical and academic.”

Given that neither Parliament nor the Government has any wish to withdraw the notification, the central issue which the petitioners ask the court to decide – whether the UK could unilaterally withdraw the Article 50(2) notification – is hypothetical and academic. In those circumstances it is not a matter which this court, or the CJEU, require to adjudicate upon.

Of course, if a hard Brexit comes to seem inevitable and there is interest in exploring withdrawal of the notification it will be too late, as the proponents of this litigation suggest:

It is also impossible sensibly to pretend that the question can be asked later.

Generally it may make sense for courts to decline to address hypothetical issues, but this issue isn’t the usual sort of hypothetical issue.

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