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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

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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notification will not be withdrawn.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).


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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

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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

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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.


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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.

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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.

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[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.


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[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.