Aidan O’Neill QC leading in case of Wightman v Secretary of State for Exiting the European Union


UPDATE: Supreme Court refuses the UK Government appeal in the case of Wightman v. Secretary of State for Exiting the European Union. This means that the question of EU law as to whether, when and how the UK’s Article 50 notice may be unilaterally revoked by it, will be considered by the Court of Justice of the European Union which will hear oral argument in this reference from the Scottish Court of Session in Luxembourg on Tuesday 27 November 2018.

Aidan O’Neill QC is leading in this case of Wightman v Secretary of State for Exiting the European Union which seeks to establish whether, when and how a notification made under Article 50(2) of the Treaty on European Union of a State’s intention to withdraw from the EU may be unilaterally withdrawn.

A preliminary reference on this point to the CJEU was made early last month by the Inner House of the Court of Session.  The CJEU, at the Court of Session’s request, fixed an expedited timetable with written observations to be submitted by 30 October and a hearing before the CJEU set down for 27 November.  The UK Government were refused leave by the Court of Session to appeal its judgment to the UK Supreme Court.  On 12 November the UK Government applied directly to the UK Supreme Court for its permission to appeal to it.  A panel of 3 justices (Lady Hale, Lord Reed and Lord Hodge) has been convened to consider this application.  The petitioners dispute the lawfulness of the UK Government’s attempt to appeal both on grounds of national law (section 40(3) of the Court of Session Act 1988 which says that no unanimous interlocutory judgment of the Court of Session can be appealed to the UKSC where the Court of Session has itself refused permission to appeal) and on grounds of EU law (the Cartesio line of CJEU case law being to the effect that a national appeal court cannot overrule or otherwise insist on the withdrawal of a pending reference made to the CJEU by a lower court).”