1 IN THE COURT OF SESSION NOTE OF ARGUMENT for the respondent in the petition of (FIRST) ANDY WIGHTMAN MSP, MG.21, The Scottish Parliament, Edinburgh; (SECOND) ROSS GREER MSP, MG.21, The Scottish Parliament, Edinburgh; (THIRD) ALYN SMITH MEP, PO Box 6469, Wick; (FOURTH) DAVID MARTIN MEP, 43 Midlothian Innovation Centre, Pentlandfield, Midlothian; (FIFTH) CATHERINE STIHLER MEP, PO Box 29253 Dunfermline; (SIXTH) JOLYON TOBY DENNIS MAUGHAM QC, Devereux Chambers, Queen Elizabeth Building, Temple, London; and (SEVENTH) JOANNA CHERRY MP, 139 Dundee Street, Edinburgh PETITIONERS against SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION, Office of the Advocate General for Scotland, Victoria Quay, Edinburgh RESPONDENT ______________________ 1. Background [1] On 23 June 2016 the people of the United Kingdom voted to leave the European Union. [2] Article 50(2) of the Treaty on European Union (TEU) provides, inter alia: “A Member State which decides to withdraw shall notify the European Council of its intention.” [3] On 16 March 2017 Royal Assent was given to the European Union (Notification of Withdrawal) Act 2017, authorising the Prime Minister 2 to notify under Article 50(2) of the Treaty on European Union (TEU) the United Kingdom’s intention to withdraw from the European Union. [4] On 29 March 2017 the Prime Minister gave notice under Article 50(2), TEU of the United Kingdom’s intention to withdraw. [5] The petitioners seek a preliminary reference to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU); and then a declarator in the light of the same specifying “whether, when and how … [the Article 50(2) notification] … can unilaterally be revoked by the United Kingdom.” [6] The Government’s stated position is that the Article 50(2), TEU notification will not be withdrawn. [7] In the light of that stated position, no genuine dispute arises as to the proper construction of Article 50(2), (TEU). 2. The grounds of application [8] The petitioners advance three grounds of application: (i) the court should simply declare the “constitutionality and compatibility with EU law of the unilateral revocation by the United Kingdom of the Article 50(2) TEU notice.” This is predicated on the possibility of rejection by either Parliament or the European Parliament or the Scottish Parliament (for whatever legitimate interest it may have) of the terms of any final withdrawal deal. (ii) the letter to the petitioners dated 7 December 2017 in response to pre-action correspondence adopts a different position from that adopted by the Government in Parliament and for that reason the “respondent’s position as stated in that letter” should be declared unlawful. In addition the petitioners argue a distinct point, that the Government misdirects itself in proceeding on the basis that the Article 50(2), TEU notification is irrevocable; and (iii) esto the Government has expressed no view on the revocability of Article 50(2), TEU, the failure so to do should be declared unlawful (although no such order is specifically sought). 3 3. Discussion 3.1. Preliminary [9] It is immediately apparent that (iii) above does not entail any requirement to determine the proper construction of Article 50(2), TEU. Accordingly, there can be no requirement for any preliminary reference under Article 267, TFEU to determine that ground. 3.2. Time bar [10] Section 27A(1) of the Court of Session Act 1988 as amended provides: “An application to the supervisory jurisdiction of the Court must be made before the end of— (a) the period of 3 months beginning with the date on which the grounds giving rise to the application first arise, or (b) such longer period as the Court considers equitable having regard to all the circumstances.” [11] If there is a justiciable issue as to the proper construction of Article 50(2), TEU (which is not accepted) it first arose when the Prime Minster gave notice on behalf of the United Kingdom on 29 March 2017. On that date the issue of whether the notification could be revoked could have first been raised. [12] In granting permission to proceed the Inner House did not resolve the issue of time bar ([2018] CSIH 18, Lord President at para. [33]). [13] This petition was presented in December 2017 more than three months after that date (nine months after). The petition is accordingly time barred in terms of s. 27A of the Court of Session Act 1988. [14] No reliance is placed by the petitioners (by averment or relevant Plea- in-law) on the provisions of s. 27A(1)(b), 1988 Act. [15] Further and in any event, no explanation is provided in the petition to justify why it would be equitable to excuse the petitioners for waiting nine months before raising these proceedings. There may be (to use the Inner House’s description) an ongoing “position”, but the “position” has been “ongoing” since 29 March 2017. In itself, an “ongoing position” does not address why the petitioners should be 4 excused the requirement to raise proceedings within three months. The respondent notes that proceedings in England and Wales seeking, inter alia, a declaration that the Article 50(2), TEU notification was “reversible” under EU law was defeated on the basis that, inter alia, the proceedings were brought out of time (nine months after the Article 50(2) notice; c.f. 3 month time limit under CPR rule 54.5.) See R (Watt) v The Prime Minister and Another CO Ref 5050/2017. 3.3. Revocability of Article 50(2) notice as a live issue (Ground (i)) 3.3.1. Domestic justiciability [16] The firm policy of the United Kingdom Government is that the notification under Article 50(2), TEU will not be withdrawn. [17] That policy has been repeatedly stated and in any event was restated in pre-litigation correspondence with the original petitioners’ agents (vid. letter of 7 December 2017). [18] The Government has committed itself to holding a vote in Parliament on the final deal reached with the European Union as soon as possible after negotiations have concluded. That vote will cover both the withdrawal agreement and the terms of the future relationship between the United Kingdom and the European Union. Parliament will therefore have a clear choice: it can vote to accept the deal or move forward with no deal. [19] Neither option involves revocation of the notification under Article 50(2), TEU. [20] Accordingly, the question whether the Government would as a matter of law be able, if it wished, to withdraw the notification does not arise. It is entirely hypothetical and abstract: it seeks determination of the issue of revocability “in a vacuum”. 3.3.1.1. Non-justiciability of issues covered by Parliamentary privilege and analogous principles [21] The petitioners’ proposition is that in order for those amongst them who are elected representatives to perform their roles as such they need to know with certainty the legal position with regard to revocability of the Article 50(2) TEU notification. [22] As regards the United Kingdom Parliament, Parliamentary proceedings are, as an aspect of Parliamentary privilege, matters that 5 are not justiciable. Adams v Guardian Newspapers Ltd 2003 SC 425 at [13] – [17]; Coulson v HM Advocate [2017] HCJAC 49 at [11] – [14]. [23] That privilege includes the non-justiciability of questions as to the extent and nature of information needed by members to perform their duties, including the need for a judicial ruling on an issue of law, the existence or otherwise of mechanisms within Parliament to procure information, and the limitations posed by Parliamentary procedure (if any) on the ability of Parliamentarians to challenge those mechanisms. [24] As regards the Scottish and European Parliaments, the operation of analogous principles commends that similar judicial restraint be adopted to proceedings in those Parliaments as regards the extent and nature of information needed by those Parliamentarians to perform their duties. [25] Accordingly, the issue of the revocability of Article 50(2) for the purposes of assisting Parliamentary voting is not justiciable in this court. 3.3.1.2. Esto justiciable, in any event incompetent [26] In any event, the ordinary function of this court is not to answer hypothetical or academic questions or to provide advisory opinions, as the petitioners invite the court to do. Macnaughton v Macnaughton’s Trs 1953 SC 387 at p. 392. [27] The question posed by the petitioners (whether Article 50(2) is revocable) is hypothetical and academic (see above). [28] No issue as to any person’s rights or duties under domestic law falls to be determined. In like manner, see R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin) at [47]. [29] There is no proposed conduct giving rise to potentially actionable consequences in private (or criminal) law on the part of the Government which is said to be unlawful. C.f. R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 at [116] [30] Indeed, no live practical issue arises. C.f. Law Hospital NHS Trust v Lord Advocate 1996 SC 301 at 309. [31] The petition is, accordingly, incompetent. Macnaughton, above. 6 3.3.1.3 Esto not incompetent, no compelling justification [32] Esto the petition is not incompetent, even where public law issues may exceptionally permit such an approach, there must be compelling reasons for doing so. R (Campaign for Nuclear Disarmament) above, at [47]; R (Stamford Chamber of Trade and Commerce) v Secretary of State for Communities and Local Government [2010] EWCA Civ 992 at [13]. [33] In that regard, as exceptional circumstances are required to justify the entertaining of hypothetical or academic questions even in subsisting litigation (for example, at the appellate stage when an issue has become moot) – see R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450 at p. 457 - the requirement for exceptional circumstances applies with even greater force when the hypothetical or academic question is raised ab ante as the de quo of the litigation. [34] Owing to the result of the referendum, the Government has committed itself to the United Kingdom leaving the European Union, with or without a deal. The firm and consistent policy of the Government is that the notification will not be withdrawn. Members of Parliament, in deciding whether to accept the withdrawal agreement or move forward without a deal, will be able to take a fully informed view in the light of that stated position. Even a ruling by the CJEU that an Article 50(2), TEU notification can in theory be withdrawn would not change that, precisely because of the firm and consistent policy of the Government that the notification will not be withdrawn. In the light of the same (and the reality of the issue of CJEU non-justiciability (discussed below)), no compelling reasons exist. 3.3.2. CJEU justiciability [35] Further and in any event, the CJEU does not admit requests for an advisory opinion. For the CJEU to entertain a preliminary reference there must be a genuine dispute. The CJEU will refuse to give an advisory opinion on a general or hypothetical question. The reference must be necessary for the effective resolution of a dispute, accepted as such by the national court. Foglia v Novello II [1981] ECR 3045 at [18]; Pohotovost v Vasuta, Case C-470/12 at [29]; Union Royale Belges des Societes de Football Association v Bosman [1995] ECR I-4921 at [65]. [36] In the light of the Government’s clearly stated and repeated position, and there being no prospect that the Government will seek to withdraw the notification, there is no genuine dispute and there is no demonstrably good reason for either the CJEU or this court to entertain the question proposed by the petitioners. 7 3.3.3. Esto justiciable, the significance of Parliamentarians’ desire to know with certainty the legal position [37] In any event, esto the desire for Parliamentarians to have the declarator sought is justiciable, the petitioners’ reliance on the need for those who are elected representatives to know with certainty the legal position with regard to the revocability of Article 50(2), TEU is fallacious. [38] As a generality, in order for them to fulfill their responsibilities it is not necessary for the courts in advance to rule conclusively on every point of law. [39] Further, more specifically, the question as to whether the Article 50(2), TEU notification is revocable is, in the light of the Government’s position, hypothetical. 3.3.4. Conclusion [40] There being (i) no justiciable issue as to the revocability of Article 50(2), TEU; (ii) which failing, no competent such issue; (iii) which failing, no relevant such issue; the petition should be dismissed. 3.4. Purported contradictory Government positions (Ground (ii)) 3.4.1. Use of Parliamentary material illegitimate [41] The petitioners argue two distinct points under Ground 2: (i) that the Government proceeds on a misdirection in law that the Article 50(2) notification is irrevocable; and (ii) that position is contradictory to the position adopted in pre-action correspondence, in particular the letter of 7 December 2017 to the original petitioners’ agents from the Solicitor to the Advocate General for Scotland. [42] Both arguments rely on statements made by Ministers in Parliament. In the light of the purpose of the proposed reliance – to draw inferences as to Government policy to reach a contested conclusion - the use of such statements is rendered inadmissible on grounds of Parliamentary privilege. Adams v Guardian Newspapers Ltd 2003 SC 425 at [13] – [17]; Coulson v HM Advocate [2017] HCJAC 49 at [11] – [14]. 3.4.2. Esto legitimate to rely on Parliamentary material, no expressed view on revocability. 8 [43] In any event, esto the use of Parliamentary material in the present proceedings is lawful (which is denied), the whole context of the statements made falls to be considered. In context, the statements relied upon by the petitioners do not vouch the proposition sought to be drawn by them. The Government’s clearly stated and repeated position is simply that the Article 50(2), TEU notification will not be withdrawn. 3.4.3 No contradiction in pre-action correspondence [44] Further and in any event, esto the use of Parliamentary material in the present proceedings is lawful (which is denied) there is no contradiction between the letter of 7 December 2017 and, when considered in context, the statements relied upon. The Government’s clearly stated and repeated position is simply that the Article 50(2), TEU notification will not be withdrawn. 3.4.5. Conclusion [45] The use of Parliamentary material is illegitimate. Absent that material, there is no evidential basis for the inference the petitioners seek to draw as to a statement of Government policy or the purported contradiction with the letter of 7 December 2017. In any event, esto it is legitimate to make reference to the Parliamentary material, it needs to be viewed in context. When viewed in context, there remains no evidential basis for the inference the petitioners seek to draw as to a statement of Government policy or the purported contradiction. The petition is irrelevant and should be dismissed. 3.5. Lawfulness of failure to express a view on the revocability of the Article 50(2) notification (Ground (iii)) 3.5.1. No obligation to disclose in the absence of a genuine dispute. [46] The petitioners’ esto argument, presented on the correct premise of fact that the Government has not stated a position on the revocability in law of the Article 50(2) notification, is that adherence to that position is, in these proceedings a failure in the duty of candour to the court “to make candid disclosure of the reasoning, and full and accurate explanation of all the facts, relevant to the issue which the court must determine and decide.” (See Stat. 25). [47] In making that argument the petitioners again rely, illegitimately, on statements made in Parliament, on the relevancy of which vid. supra. 9 [48] In any event, in the light of the Government’s clearly stated and repeated position that the Article 50(2), TEU notification will not be withdrawn, there is no genuine dispute as to the revocability of that notification. Absent a genuine dispute, there is no obligation on the part of the respondent to disclose any further policy position on the issue of revocation of the Article 50(2), TEU notification. 3.5.2. Conclusion [49] The use of Parliamentary material is illegitimate to support the argument that the respondent is not candid in averment. In any event, there is no lack of candour in averment in the light of the Government’s clearly stated and repeated position, giving effect to the will of the people of the United Kingdom expressed in the referendum, that the Article 50(2), TEU notification will not be withdrawn. The petition should be dismissed.