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.



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
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.
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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