Legatum and Hypocrisy

This may have passed you by. Christopher Chandler, and members of the Legatum group (“Legatum”), he founded, have been seeking to silence his critics.

Here is an apology published by the Guardian:

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That apology was tweeted out by Legatum with this commentary:

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But they didn’t stop there.

Legatum also threatened to sue a small online political site ‘Left Foot Forward’ causing it to issue a retraction. I am also aware that legal proceedings have been threatened against a tiny pro-EU campaigning organisation. And there may well be others.

You should read Left Foot Forward’s retraction. This are matters of real triviality. Is threatening to sue a modestly sized website the behaviour of a group which “champions the freedom of the press”? Or is it the conduct of a group which is perfectly prepared to use its wealth and power to suppress criticism of the man it identifies as its founder?

I ask because, back in December last year, Legatum issued a statement containing a false and ugly smear of me:

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At the time, I stated that that allegation was in error. And I asked Legatum to specify what “dirty tricks” I was guilty of.

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That request was ignored. Was that the behaviour of an organisation which believes that “with freedom comes responsibility”?

When I saw that an apology had been demanded of the Guardian for its treatment of Christopher Chandler I wrote to him. You can see my letter here.

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I referred to Christopher Chandler’s objection, as revealed by the Guardian’s apology, to the accusation of hypocrisy. I referred to Legatum’s false and ugly smear of me. I assumed Mr Chandler would want that smear to be withdrawn. And for an appropriate person at Legatum to apologise for it. And I undertook to keep the apology private. I did not seek damages. I did not seek his or Legatum’s embarrassment. I asked him to behave honourably and decently.

Some days ago I received this response.

You will note it is written on behalf of the “Legatum group of companies” to whom it claims, falsely, that I wrote. Christopher Chandler, who sets great store by his reputation, has simply not bothered to respond.

That letter:

(1) of the “dirty tricks” smear, it claims (absurdly) that it was not directed at me;

(2) it attacks me for the questions that I have raised and the opinions that I have expressed about Legatum’s conduct; and

(3) it accuses me of hypocrisy in relation to my conduct on tax avoidance.

Let me say that I am happy to defend my conduct and I accept it is a legitimate matter for reasonable open public debate. I have addressed my position on tax avoidance here. And I am happy to confirm I took advice from a QC specialising in charity law before expressing the view I did that the Legatum Institute’s conduct was likely on the wrong side of the law.

Legatum, on the other hand, has used its money and the power that comes with it to stifle criticism of Christopher Chandler advanced by media with even modest reach whilst claiming to “champion the freedom of the press”. Christopher Chandler has failed to apologise or acknowledge I am entitled to an apology for a false and ugly smear whilst Legatum trumpets the claim that “with freedom must come responsibility”. Christopher Chandler has objected to suggestions of “hypocrisy over Brexit” but Legatum behaves hypocritically when it comes to press freedom.

Legatum’s record suggests I may face legal threats or worse for writing this. But it and Christopher Chandler are powerful and divisive and we must be free to discuss them and, if they are hypocritical, we must be free to call them out.

That, as Legatum might say, is what “champion[ing] freedom of the press” looks like.

My speech on accepting the Praeses Elit 

Earlier this afternoon, at Trinity College Dublin, I was awarded the Praeses Elit (2018).

The Praeses Elit was established by former President of Ireland, Mary Robinson, and is awarded by Trinity College Law Society to “those who have advanced discourse in their line of work, and who have been a source of inspiration for young people everywhere.”

Recent winners include Nobel Prize winner F W de Klerk (2017), President of the Supreme Court Baroness Hale (2016), and Bob Geldof (2016).

What follows is the text of my speech.

***

It’s a profound pleasure to be here in Trinity College.

It’s an institution I have always felt an affinity with. I was here, in your chapel, to see two of my closest friends marry – Dominic Clarke and Ailis Ahern (she has a proper name, a Gaelic name but I’m not going to massacre it in front of you).

Dominic and Ailis met each other, and I met them, on an Erasmus year. And what a year it was: European constitutional law taught to us by a willowy and rather bookish young man called Koen Lenaerts, now President of the CJEU. And a stage in the Cabinet of the Belgian Advocate General, Walter van Gerven – perhaps the best lawyer I’ve ever known. It was the making of me as a lawyer.

And, as students we ate together and we drank together and we – let me call it “socialised” together. And we put aside the divisions of nations and we felt part of something bigger, something new. We felt optimism and we felt hope.

I went on to make amends for the crimes of my misspent youth – studying as an undergraduate law rather than a real humanity – with an MA and a dissertation on Samuel Beckett. If you ever find yourself struggling to articulate a thought in a tutorial, take comfort in this. Trinity’s very own Samuel Beckett won a Nobel Prize for performing the inadequacy of language. As an aside, I can’t read lines like the opening of Murphy: “The sun rose, having no alternative, on the nothing new” without also thinking how great he’d be on Twitter.

Being here, as Samuel Beckett was, makes me hugely proud.

So now to the work for which you have chosen to award me this splendid thing.

I am often asked why I do it.

And as I stare at the battered wreckage of my once lucrative professional practice, I ask myself that same question. And seeing in the mirror the sleep-deprived return of teenage acne – now splendidly framed by an entirely silver head… Well, that does not distract my mind from the question. And then I think of the only few snatched hours with my three daughters and a wife I love…

But I could no more stop the work that I am doing than I could grow wings.

Because I often talk about what I do – and only half in jest – as the result of a kind of pathology.

Its roots lie, I am sure, in a childhood where I was mistreated and I was powerless.

But now I am not.

I have the meretricious authority that comes from being a Queen’s Counsel. I have the platform of a stable family and the reach of approaching 80,000 twitter followers. I have the intermittent support of one of the best newspapers in the world. And I have the enormous advantage of the intellectual freedom that comes with self-employment.

Let me briefly transmogrify into one of those old men who come to the places where the young people are and tell them what to do. Have a good partner and nothing is impossible. Fight for a life where you are chiefly accountable only to your conscience. You may not be as rich – but you will always be happy and you will always be fulfilled.

So I ask myself, with all of those advantages, if I will not stand up to what is happening to my country? Then who will? Who are these people who are better placed than me?

Because I hate what is happening to the United Kingdom. I cannot understand its increasing indifference to the vulnerable. I am terrified by its contempt for democracy. I abhor the corruption of its institutions.

But alongside all of this, what is happening, what this unparalleled moment of democratic crisis also portends, is a kind of optimism.

Because we were complacent. Others, we thought, would sort it out. Scientists would fix global warming. Our social services would not tolerate the sexual trafficking of children. Healthcare would be there for those who needed it. Tax dodgers would be brought to book. Crime would not pay.

But now we know that that is not true. We know we must do it ourselves. And we have learned that lesson whilst there is time enough.

We must do it.

You must do it.

Meanwhile I reflect on that scene in Lord of the Rings with Gandalf on the Bridge at Khazad-dum. The fiery twin-horned Balrog approaches. And Gandalf – with his grey hair (and if you look really closely some prodigal teenage spots) – stands on the narrow bridge across a chasm.

And, although he knows the Balrog is too much for him, he plants his staff and his sword on the bridge and he says: “The dark flame will not avail you.”

“You shall not pass.”

Thank you.

A short response to Dominic Cummings

The judicial review brought by the Good Law Project caused the Electoral Commission to reopen its investigation into whether Vote Leave and Beleave were working together such that their spending must be aggregated. It has the evidence and it, rather than Dominic Cummings or Boris Johnson, will have to decide.

And, in consequence of that judicial review, no later than July the High Court too will have to decide whether the donations – if properly analysed there were donations – of services or cash by Vote Leave to Beleave count as Vote Leave’s spending.

The High Court may also comment on whether, as Dominic Cummings claims, the Electoral Commission gave him permission to make those ‘donations’. My own view is that it doesn’t much matter. My particular concern is not with whether Vote Leave had a reason to overspend but with whether the referendum took place as our Parliament mandated. If the Electoral Commission misunderstood the law and gave Vote Leave a permission it shouldn’t have then that will just make it all the clearer that the referendum was mismanaged; that it did not take place as Parliament intended.

So, on these matters, I don’t feel any particular need to respond to Mr Cummings’ excitable claims. The Electoral Commission and High Court can address them.

He does, however, advance three false allegations about me in this paragraph:

Accusations from the dishonest @Jolyon that Vote Leave did not have permission from the EC to give donations to other campaigns were disproved in open court just days ago when the documents were revealed, and @Jolyon was criticised by the court for his conduct.

First, he claims I denied the existence of the Electoral Commission advice. That, I am afraid, is just nonsense. The position I have consistently adopted is stated here (there are many other examples):

Indeed, my belief has been that some advice may well exist, see, of many examples I could cite, this:

Second, he asserts I am “dishonest”. He advances no basis for that allegation and there is none to be advanced.

Third, he asserts I was criticised by the court for my conduct. You can read the judgment here. It contains no such criticism.

He has no ball to play so ineptly he strikes out at the man.

But the ball is still there: did the referendum take place as Parliament mandated? Or was it mismanaged and unfair such that it cannot be said to have delivered the will of the people?

These are questions the Electoral Commission and the High Court will now answer.

The BBC and Jeremy Corbyn

Yesterday I tweeted this:

And I went on to explain why I would not give any further information. But I think there are further matters I can add that would add context and meaning to my tweet.

  1. What can I say about X? My “conversation” – which was conducted entirely in writing – took place with X. X is an individual at the BBC whose seniority and sphere of work is such that it could not sensibly be suggested that X is not properly qualified to speak on such matters.
  2. How did the conversation arise? The conversation took place subsequent to Jeremy Corbyn becoming leader and in the context of a broader conversation about his treatment by the press.
  3. Was the conversation in private? It was not explicitly in private. But I understood it to be part of a private conversation. At the time I asked X whether I could make public an anonymised version. X indicated a preference for me not doing so as to do so might cause a witch hunt.
  4. Why did I tweet what I tweeted? I think it is important I respect X’s wish that nothing be said that could conceivably enable X to be identified – including the particular language used by X. But I also think it is important to put this in the public domain – in particular in light of the BBC’s response to claims that it is coding into its imagery anti-Corbyn messaging. The tweet represents my attempt to balance those two matters. [Transparency note (i) I am a vigorous critic of Corbyn, especially on the subject of his stance on the EU (ii) I have said I agree with criticisms of the BBC’s use of images of Corbyn in front of St Basil’s cathedral].
  5. Can I say anything more about the substance of the conversation? X talked explicitly and unambiguously about how criticisms of Corbyn that the BBC could not voice were deliberately coded into imagery. X did not say that this was a general policy of the BBC or that there was some institutional directive to ‘smear’ Jeremy Corbyn. X clearly understood that X’s comments were sensitive for the BBC (see 3. above). [Note: my understanding of the BBC’s news/current affairs/politics output is that it is relatively heterodox.]
  6. Given that I will not release images of the written exchanges how can they be verified? I have said that I would swear a statement that my tweet above is true. I am also prepared to consider asking a lawyer, who would be bound by a professional duty of confidentiality, to swear a witness statement saying that s/he has reviewed the written exchange between me and X and that my tweet and this blog post is accurate.

The BBC, Presenters and HMRC

The recent decision involving a former BBC Look North presenter raises a question that will be familiar to long-suffering followers of this blog: “who bears responsibility when tax avoidance schemes go wrong?” (Arrivistes may care to read this summary of the many pieces I wrote about footballers. And this, on how the professionals get away with it.)

The legal answer is straightforward.

As I explained here, the drafters of the IR35 regime intended that, if IR35 applied, the tax liability should sit with the engager (here the BBC). That made sense for several reasons: the engager were beneficiaries of the use of personal service companies (they avoided liability to employers’ NICs) and the tax can be collected from the engagers (in practice, very often it can’t be from PSCs).

But the Government of the time gave in to lobbying from engagers. And the result was the unfortunate situation we now see, where historic liabilities are shuffled onto those with the least knowledge and often without the resources to meet them.*

And alongside the legal question there is a moral one: are the presenters really to blame?

Answering that question is altogether more difficult. Some presenters will be financially sophisticated. Some will knowingly have engaged in risky tax behaviour. But a great majority will have relied on their advisers, will have been tacitly encouraged by the attitude of the BBC (‘how could the BBC be involved in tax avoidance?’) or other major broadcasters, and will have been fortified by the many years in which HMRC seemed barely to bother to apply IR35.

Is it really fair that we point the finger only at the presenter? Should the BBC escape moral obloquy? And what of the army of advisers?

Meanwhile, for those presenters who can lay reasonable claim not to be caught by IR35, further difficulties mount up.

HMRC is one actor and can behave strategically. It can choose the cases with the ‘ugliest’ fact patterns – for example, the Look North case mentioned above – and seek to establish the law by reference to those cases. Principles developed in those ‘ugly’ cases will then be applied to better fact patterns.

But the presenters are disparate. They may act in what they perceive to be their own interests rather than the collective interest. They may bear costs personally rather than pooling and sharing them – and so lack the resources to engage the best representatives. And they may not think to put their ‘best’ cases forward: will news presenters hold their cases back so that the easier categories of sports and talk presenters can go first?

These assessment whether IR35 applies involves a delicate balance of complex facts. It is far from straightforward. And it is perfectly possible – indeed it is likely – that these structural imbalances as between the disparate group of presenters, on the one hand, and HMRC, on the other, will cause whole classes of presenter who might otherwise escape liability instead to bear it.

Hard cases, as every lawyer knows, make bad law.

The weight of tax liability, moral responsibility, and the burden of bad law. All could come to fall on presenters.

*For tax liabilities accruing from the start of this tax year, we will revert to the original intention, but only in respect of public sector employers. This biased approach makes little sense. Writing on the day of his announcement, I argued that this step made little sense unless you wanted to tilt the playing field in favour of public sector outsourcers.

**Transparency note. I am professionally active in this field advising both broadcasters and presenters.

This is no time for complacency. The rule of law is under threat.

These are extraordinary times.

We are jettisoning much of the post-war constitutional superstructure. We are losing the Charter of Fundamental Rights. The Prime Minister has signalled her intention to ditch the European Convention on Human Rights. The Government’s EU Withdrawal Bill places broad law making powers directly into the hands of Ministers. The devolution settlements are under explicit threat.  Cabinet Ministers are contemplating the reintroduction of a hard border in Northern Ireland.  The Government routinely ignores in part or in whole motions in Parliament. It acts in breach of constitutional conventions (para 150). “Senior Brexit Tory MPs,” it is reported, are taking legal advice on whether the Executive can ignore the Supremacy of Parliament. The Prime Minister appointed as her official spokesman a man, James Slack, whose ‘Enemies of the People’ front page incited threats against judges.

And the threat these extraordinary times poses can already, I believe, be seen in the operation of the rule of law in our highest court. Let me explain.

The central point in Gina Miller’s case was this:

when Notice is given, the United Kingdom will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the United Kingdom, whether or not Parliament repeals the 1972 Act. As Lord Pannick QC put it for Mrs Miller, when ministers give Notice they will be “pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”. In particular, he said, some of the legal rights which the applicants enjoy under EU law will come to an end. This, he submitted, means that the giving of Notice would pre-empt the decision of Parliament on the Great Repeal Bill. It would be tantamount to altering the law by ministerial action, or executive decision, without prior legislation, and that would not be in accordance with our law.

To address that point you would obviously need to consider whether “pulling the trigger” would have as its inevitable consequence the removal of legal rights. And the only court that could answer that question was the Court of Justice in Luxembourg.

But, as we know, the Supreme Court did not ask that question of the Court of Justcie in Luxembourg (despite the fact that it seems to have expected to be asked).

How did it avoid that course? Paragraph 26 gives you your answer:

In these proceedings, it is common ground that notice under article 50(2) (which we shall call “Notice”) cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn. Especially as it is the Secretary of State’s case that, even if this common ground is mistaken, it would make no difference to the outcome of these proceedings, we are content to proceed on the basis that that is correct, without expressing any view of our own on either point.

Gina Miller wanted to win; she was (then) happy to assert the Notice was irrevocable. For his part, the Secretary of State could not contend that the Notice was revocable because that would suggest, contrary to the Government’s policy, that the Notice might actually be revoked. And so the Supreme Court decided to assume that the Notice was irrevocable “without expressing any view of our own.” And, as we know, it went on to decide that the Government could not give the Notice without the permission of Parliament.

But here’s the thing.

It’s no part of legal reasoning to proceed on the basis of an assumption of the law. It’s logically impermissible. It risks wrong outcomes – with serious consequences. Let me illustrate the point.

I am one of six petitioners before the Inner House of the Court of Session in a claim asking for a reference to the Court of Justice on the question whether Article 50 can be unilaterally revoked. The case is likely to reach the Supreme Court. What happens if the question is referred to the Court of Justice which says the Article 50 notice can be unilaterally revoked?

It follows that the Supreme Court will have decided Gina Miller’s case on the basis of an flawed assumption of the law. But for that flawed assumption (many believe) the Supreme Court would have decided that the consent of Parliament was not needed to serve an Article 50 Notice.

Now, as it happens, Parliament did not, as the price of consenting, tie the Government’s hands to a particular negotiating objective. But it might, for example, have accepted the Lords’ amendment guaranteeing that EU citizens here continue to enjoy EU derived rights. It might have changed the course of Brexit and it might have done so without any proper legal basis. And that fact might have become known when the Court of Justice ruled on revocability. And all of those risks are why it is logically impermissible for a court (and especially a constitutional court) to proceed on an assumption of law.

So why did the Supreme Court take this course? Did it just forget this was impermissible and dangerous?

No. And here we delve into the realm of speculation. But my explanation is this: it was intimidated by the ferocious headlines in the Mail and elsewhere. It was spooked by the failure of the then Lord Chancellor to perform her constitutional duty to defend the judiciary. It felt threatened by Sajid Javid’s warning: “This is an attempt to frustrate the will of the British people and it is unacceptable.” It feared what would happen if it referred the question in circumstances where a referral would delay the Prime Minister’s stated intention to notify Article 50 by the end of March.

Let me put it bluntly. There is, I think, good reason to believe the Supreme Court was intimidated into acting contrary to the rule of law.

These are, indeed, extraordinary times.

And it is not sufficient to say, as many (including the Prime Minister’s former Chief of Staff) do, that “we” – whoever the “we” is in his sentence – can be trusted.

And it is not enough to assume that because things were fine fifty years ago they will be alright now.

We have no domestic written constitution. The extra-national constitutional structures are under explicit threat. There is good reason to think that the operation of the common law – that very British constitutional solution – has already been weakened by the prevailing climate. And, as my opening paragraphs point out, the Executive is running amok.

And this should alarm everyone – wherever they stand on Brexit.

The hearing in the Inner House of the Court of Session

Regrettably, in my opinion, the Lord President of the Inner House of the Court of Session yesterday ruled that it would “not be appropriate” for a party to live tweet a hearing. In the circumstances I am publishing a contemporaneous note – tidied up and cross checked for accuracy against one other contemporaneous note – of yesterday’s hearing.

SUMMAR ROLL HEARING

WIGHTMAN AND OTHERS, PETITIONERS

21st February 2018 10.50am

Aidan O’Neill Qc (for Pet’ners)
7th petitioner not part of the reclaiming motion. Not taking part due to expenses – particularly because of finding in OH.
More than 10 authorities listed. More than usually permitted. No time to reach a joint number of ten. Apologies to court for that. 1 authority was titled Coulson but was in fact another. That has now been replaced. What has been replaced in an unreported version of the decision. It has in fact been reported.
Timing – set down for 2 hours. Propose to speak for 1 hour to set out case respondent has 40 minutes, leaving 20 minutes for any response.
LP – authorities now confined to 16. Lodged note of argument which has got 50 authorities or so. What exactly is expected of us re these authorities.
Aidan – not planning to go to those authorities. The ones court needs to go to are in the bundle. Others are for vouching propositions of law. Understanding is that practice note speaks of authorities to be used at the hearing.
LP – practice note intends note of argument would not be a written submission. Intended to me note of argument in broad terms. Intention is that the note of argument should confine itself to the authorities mentioned in the practice note. Court has limited time and should be able to get grips with it by the time of the hearing.
Aidan – not taking court to all of the authorities. I have set out the relevant passages. Had to be prepared in 6 days.
Now move to set out stall. Adopt note of argument first off and then highlight certain issues from it. (11am)
No time bar issues.
2.1 – 2.7 deals with test of satisfying the court of real prospects of success. Meant to filter out unmeritorious claims. Different threshold from previous under first orders. It is a low test and is for the court to be able to ensure fanciful or hopeless cases do not make it to full hearing.
Permission should be granted if there is doubt in the judicial mind. LO in this case was mindful of low hurdle but we say he did not correctly apply the test.
Particular errors: 12-14 of decision “hypothetical and academic” is incorrect. Para 2.8 of note of argument. He mischaracterised the factual background.
Parliament rather than government is sovereign in this matter. Article 50 notification must be withdrawn if Parliament so orders.
Cannot be said that Parliament has no wish to withdraw. Can be said that there are going to be votes on the deal. Parliamentarians will have opportunity to vote. They will take place prior to the conclusion of the agreement and prior to Exit Day per the current bill.
Not a hypothetical issue. The votes are a certainty. It is laid down in law. It is neither academic b/c clear from affidavits that issue of unilateral withdrawal will inform the votes of those parliamentarians.
This petition comes not out of idle curiosity but there is a real question of law of immediate impact. It is of profound constitutional importance, nationally and internationally.
LO seemed to think hypothetical and academic was the end of the matter. The Resp now concede that public interest petitions are comptent, just not in this instances. They did not take that position during submissions.
If that position were the law, Miller would never had made it into court. Notification of Art 50 on basis of royal prerogative had not happened – it had only been proposed. Courts considered that it was appropriate to hear the case and pronounce a declaration. On LO’s reasoning, Miller shouldn’t have been granted permission. That is unsustainable and in fact there is jurisdiction within supervisory jurisdiction for the court to pronounce declarators and to provide guidance to the parliamentarians on decisions coming before them. Precedents in Scotland and in England where court has given clear rulings to be adopted is lawful.
The votes int he Scottish, European and UK Parliaments will occur. Petitioners here need to know, in order to exercise their votes properly, what alternatives are open legally to the UK and EU should they take the view that the withdrawal agreement is not acceptable.
What is being said by Resp is that there are only 2 options. Deal or no deal. Take and approve the deal or the UK leaves the EU without any deal – cliff edge with no transition period.
We say that there is a third option. This is denied by the respondent. The third option is to withdraw and remain part of the EU. This is set out in the affidavits lodged in the appendix.
Without knowing before they cast their votes what the options are as a matter of law, they cannot properly carry out their duties as elected representatives. Petition raises issues of reality and of practical concern. Set out in Law Hospital – proposed conduct with no contradictor (no dispute) but court exercised declaratory judgment to give guidance. This is not an ivory tower debate among academics. They need the ruling now – if not know, when? It would be too late if after the vote. It cannot be the case that there is no ripe time. It is by that reckoning never right for judicial review. Petitioners need to know now whether they are right on the three options rather than the two which government represents as being available. Democratic norms and the rule of law. Regard to UNISON case where SC struck down fees on employment tribunals in which Lord Reed spoke about rule of law (quote from case).
There are 3 actors within the constitution. Courts have responsibilities constitutionally to ensure that executive stays within the boundaries of the law and give guidance to parliamentarians about exercising that power lawfully.
Miller is a precedent for the type of order we seek. Right to die – Airdale and Lord Browne Wilkinson’s “clear ruling”. The court should exercise the same kind of jurisdiction to provide declaration to parliamentarians who need to know whether the course they propose would be lawful as a matter of EU law. We seek this court’s reference to CJEU as the only authority able to give a final and authoritative ruling on this matter. It is a matter of controversy which can only be resolved by the European Court of Justice. Academic opinion is stongly in our favour, although there exists some for the opposition. It is a matter of controversy.
In Airdale, Lord Mustil had some concerns but vote was ultimately unanimous in granting answers to set of hypothetical questions. Law Hospital before this court dealt with civil courts pronouncing on criminal matters – court granted declarator. Nobody liable civilly at the time. Was proposed conduct lawful. They are parallel as to what is sought in this petition.
Academic means that the issue would not directly affect rights and obligations of the parties. Ref to McNaughton dicta.
Just what is a live practical question not always easy to determine. Each case must be decided on its merits as to the reality and immediacy of the issues raised. Court must look at whether there is issue of reality concern and practical utility. Cases in Scotland and elsewhere where the judge has issued declaratory remedies in similar circumstances. Set out in the note of argument.
Most relevant and clear example of this court – Napier v Scottish Ministers (slopping out). Matter was taken to IH even though individual case had settled and money awarded by the court had been paid over and undertaking was given that the monies would not be recoverable notwithstanding the outcome of the reclaiming motion. IH hearing was purely academic.
Para 4 distinguishes between private right declarators and those in the public interest permitted in the likelihood of future disputes. Good reason in the public interest.
Here there is a dispute. Even if court says Resps are not willing to act as contradictor, not a bar to supervisory jurisdiction where in public interest. We most certainly are in that area here.
In Napier declarator was pronounced re burden of proof to be applied in future cases.
It is therefore clear that court has jurisdiction to entertain questions even of academic nature. If it is in the public interest so to do and it raises issues of reality, concern and practical utility. That is what we say should have been applied by LO. When applied by this court, we pass them and – bearing in mind low threshold – this matter should be granted permission.
2.25 – does court REQUIRE to adjudicate. It is a question of whether it is an appropriate exercise of jurisdiction to do so. Rusbridger – Lord Steyn said not making a statement cannot be sufficient. (Quote from case). If resps will not contradict, court may appoint a contradictor as amicus curiae.
This application does require to go forward to substantive hearing. There will be a vote in the autumn. Legal issue is of evident public concern. Does not affect only the petitioners but affects all parliamentarians in the UK. Risk of being found liable has been exercising a deterring effect on a number of parliamentarians coming forward and taking part. This court will nonetheless be giving guidance to those parliamentarians. It is not premature and it is not too late. Not taking the action now means that there is a risk of CJEU not having the time to make the necessary ruling.
We understand that there is an expedited process. 4-6 months seems to be the turnaround time. (Gauweiler and Pringle) I sya this in contrast with the normal time of two years. In the foot and mouth case, there was 10 weeks between application and decision. 4-6 months for grand chamber ruling is actually fast by CJEU standards.
There is an important public interest. If matter left, not going to be in time. Clock is ticking. Exit Day is 11pm on 29th March – if no vote by that point, cliff edge reached.
Would CJEU refuse to hear it? We say no. We set out why in the note of argument. Court not happy to hear academic disputes. That does not apply here. It is not a manufactured dispute as was the case in Foglia.
CJEU would not be asked to give an advisory judgment. It would bind this court as a matter of EU law.
There is clearly a genuine dispute here unlike Foglia. Resp doesn’t admit the Petitioners’ legal arguments. If they are not admitting them, they are denying them.
Government says 2 options, we say 3. There is clearly a dispute. Even if there is a 3rd option, they say they won’t act on it. The Government is not sovereign. It must act on what Parliament decides.
It is clear that CJEU willing to give judgments in such circumstances. Only refuses to hear extraordinarily.
None of the provisos apply in this case. Something not having been acted upon in national law is not a bar (Gauweiler) and repeated in American Express. Court only unusually refuses to hear a case and there is a presumption of relevance. Court presumes good faith of national courts. If this court says it is necessary, CJEU will accept that.
Bosman case was purely declaratory. Was to do with free movement provisions not yet applying to the applicant. Court heard the case and gave a judgment on it.
HANSARD – LO accepted Resp’s contention that using hansard breached privilege. Toussain is the authority dealing with that. Privy Council case – quotes from report and Art 9 not intended to protect executive from the courts. It is not possible to hamper challenges by ring-fencing them by only saying them inside Parliament. That would be an attempt to circumvent supervisory jurisdiction. It is entirely permissible to refer to statements as evidence of what was said. What is not acceptable is for executive to say “they didn’t really mean that”. That is questioning what was said in the house. (quote from Toussain). If there is any breach of Article 9 – it is by the Resp by seeking to question what was said.
We do not rely on the statements to explain rationale, we rely on them for what they say and what they say is wrong. If they adopt a position inconsistent with what was said – they are saying one thing before parliament and another before the courts and that is unconstitutional. Pepper v Hart was designed expressly to protect against that.
They do not say that the minister did not say it. They say that other statements should be looked at – they speak to government position. We look at them for what they say as to whether Art 50 is revocable.
Even if no dispute or Resp feels unable to argue it, court can appoint an amicus.
Timebar matters taken as stated in the note of argument. We challenge revocability, we do not challenge the notice itself.
Sufficient interest – admitted until 11.15 yesterday. No idea why the admission has been removed. No basis to challenge it on Walton grounds.
Government has been required by Parliament that a vote will be held. Parliament will by statute approve or not approve the deal before Exit Day. Government has not committed itself – it has been committed by Parliament. It is to be done before Exit Day.
Vote will cover withdrawal agreement – 2 options available – not for the Government to say what Parliament will do. What they are saying is that 3rd option is not available.
This is not a vacuum issue. It is a real deal and a real issue. The issue is can that be stopped?
Para 16 they imply that the Government is sovereign and not Parliament. It is not the Givernment that is leaving the EU, but the UK. They seek to deny the availability of 3rd option.
Paras 20-26 duty of candour case is mentioned by the Resp. We do not accept their position. The duty of candour is a subsidiary issue. It is not a stand alone issue. It would be expensive and pointless and the petitioners would not be proceeding.
We move that permission be granted on all issues or that permission be refused. Respo just wants permission to be granted so that they are reviewed only on the basis that they refuse to say what they will do.
Invite court to accede to motion.

David Johnston QC (for Resp)
Invite to refuse reclaiming motion and refuse permission to proceed. Adopt note of argument and spend time most usefully addressing petitioners’ note of argument and submissions.
Agree that permission is not a high bar. LO noted that and he was correct to do so. This application falls far short of overcoming that hurdle.
Hypothetical/ Academic
LO was right to conclude that there is no live issue in dispute. This is set out in the pleadings and note of argument. Art 50 notification will not be withdrawn. The question of whether it COULD be withdrawn does not arise. The court is being asked to rule on something that nobody is proposing to do. The authorities relied upon deal with something that has been done or was proposed. Here this court is asked to review something that nobody is proposing.
Lord DY – When you say ‘nobody’, what about Parliament deciding? It is soverreign.
David J – nothing suggests Parliament intends to withdraw the notice. Nothing suggests Parliament is seeking to withdraw the notification. It is an issue that quite simply does not arise. See paras 12-14 of the LO’s decision.
Lord DY – But MPs may change their mind.
David J – on the material before this court, there is nothing to suggest that Parliament has the intention to seek withdrawal of the notification.
Miller case – para 2.10 of petitioners’ note – no distinction to be drawn was the suggestion. I submit that there is a clear distinction. Gov has proposed to make the article 50 notice without seeking the authority of Parliament to do so. Here court is being asked to rule on something that nobody has proposed.
Law Hospital/ Airdale/ Bland – para 2.19 of note of argument – there is a course that is proposed.
Pages 309 and 319 of the Airedale report – willing to make declaration about something which is proposed.
The authorities used by Petitioner do not provide precedent for court to determine something which is not proposed by anyone. Where the issue is simply a speculation, there is no issue for review by this court.
Napier case – Resp accepts that cases which engage public interest allow greater latitude for cases to proceed but still need to be good and substantial reasons for that course to be allowed. This case is quoted at length. Key para is quoted on page 9 of petitioners’ note at [7]. This is a clear case of importance and one can see why the court would take that view. Many such cases to which the ruling applies are brought before the court. Judges need to know what the appropriate standard of proof is. The step was taken when the proceedings in that case were at the appellate stage. Here we are asking – should proceedings be allowed to begin at all. No presumption on that matter should be made.
Jurisdiction of CJEU
Numerous cases show that the court is unwilling to give a preliminary ruling where the matter is hypothetical. Corollary is that there requires to be an objective requirement for resolution of a dispute.
2 cases referred to in note of argument – Foglia (13 of bundle) at para 18 and Czech case (17 of bundle) paras 17 and 29. They stand as authority for the proposition that I have given.
Only other point is to look at various cases dealt with by CJEU. Just look at quotes in note of argument. Gauweiler (page 15 of NOA). Key point I make is para 27 – might be useful to have regard to para 1 of that judgment. (READ OUT) It concerns technical features of sovereign bond market. There is nothing hypothetical about the matter at hand. That is quite different from what we have here.
Next case (2.45 of NOA) American Express case. If one looks at first 4 lines of para 33 that says all that is required to be said.
Belgian football case – case brought for preparatory purposes only. His right was seriously threatened by nationality clauses which had been adopted. Court deferred to national court as a matter of Belgian law. Issue is infringement of a right which is proposed to be restricted.
There is no reason for this court to be persuaded by those cases that the CJEU is open to hypothetical advances.
Parliamentary Privilege
Pet’ners’ argument is that their references to Hansard are legitimate because they seek to do no more than refer to historical fact. That is not an accurate characterisation of what is sought here. Here the Gov’s stated policy is that the notification will not be withdrawn. There is no reason for recourse to Hansard to establish that. Only reason to resort to it is to extract material from it on which they seek to construct a Government position about the lawfulness of withdrawal. It is inadmissible on the authorities.
First of them – Coulson criminal appeal (4 in bundle). Appeal court in which Lord Menzies sat. Para 11 onwards discusses parliamentary privilege. All I take is the crisp summation at para 20 – last 2 sentences of it.
Lord DY – how does that square with Pepper v Hart?
David J – Pepper v Hart is an exception to a well established rule. It is important to see it in that context. It was not a unanimous decision.
Lord DY – but it has been assiduously followed since nonetheless.
David J – I also refer to Toussain case. I use it to show the court that we are dealing with something particular and special and it is not an invitation to courts generally to look at parliamentary proceedings. It is helpful to look at Paragraph 4 on 2828 – on 5th Dec … (READ OUT)
The key point on the facts is that it was a specific statement made about the property of an individual, made during parliamentary proceedings. That explains the decision of the board of the Privy Council. That is the only reason they allowed reliance on Hansard. He was allowed to rely on it because, without doing so, he could not challenge the government’s interference with his property. Privy Council is saying that relevant legislation should be read down as to be compatible. They do so to allow explanation of executive action. Neither of those things applies in the present petition. The case does not advance the petitioners’ argument in the manner sought.
Otherwise, adopt NOA.
Time bar
Nothing to add beyond para 19 of NOA. If the question is “can article 50 notification be withdrawn”, that question is one that arises when the notification is made. Can’t be raised before then but that question is then live when notification made. By that standard, it is clearly out of time.
Sufficient Interest Point
This is not directed at the qualities of individual petitioners. If court accepts Resp’s position that the matters are hypothetical, nobody has an interest to proceed. It is not intended as a specific challenge to the petitioners.

Aidan O’Neill QC reply
Hansard
Coulson does not refer to Toussaint. It was criminal proceedings – not the situation we have here.
1999 joint parliamentary report – produced in appendix. Paras 43-55 of that report are useful. It is relied upon in Toussaint. It sets out correct constitutional position.
This petition concerns a standard judicial review of a statement which is a misdirection in law.
Nothing said by David J counters that.
Gauweiler and Bosman
Attempted to distinguish these. We say in terms that their statements from November reveal a statement in law and we challenge it unequivocally. There is a decision at issue, the vires of which is being challenge.
Napier
Assertion made that there is difference between supervisory jurisdiction at appellate stage and at permission stage. Made without any authority. Napier was made with the express authority of the IH. It is an example of permission being given on purely academic matter. Airedale and Law Hospital in any case are not appellate. There was no active dispute.
David J asserted that this case is about something that nobody is proposing. We understand from him that Government would rather not do it. Its claim that the notice will not be withdrawn is not a complete statement.
Parliamentarians require the information about whether the option is available. 6th petitioner notes this in the affidavit.
Oliver Letwin quote handed up to the bench. Quote from Letwin read out to the court.
It is clear that the proposal is in terms and it is in reference to the vote which will be held under and in terms of clause 9(1) of EU withdrawal bill. Not simply speculation as set out by David J.
NOA sets out position re further procedure. 6.1 of NOA
Final point on expenses from 6.3 – 6.7. It is a live issue in this case. LO awarded expenses notwithstanding that this is a public interest case. Is not normal for expenses to be awarded.
We say that the chilling effect that this has caused and is causing is inappropriate in a public interest petition such as this. Proper approach as set out by Lord Reed is that in exercise of its common law discretion, court should overturn the decision of the LO on expenses and should award expenses against resp for first hearing but thereafter appropriate course is that none due to or by for procedure from here on.
LP – why is that being raised now? If you are unsuccessful here, there will be no further procedure. It would be for the LO if remitted to him to make determination on expenses.
Aidan – it would be open to the court to retain the substantive hearing.
LP – I am not sure that is the case.
Aidan – nothing to add.
LP – avizandum

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