Wednesday 2 October 2019

Brexit ~ Further court actions in Scotland

Court of Session
Updated 9 October

In early September it was announced that proceedings had been commenced in Scotland's Court of Session by petitioners Joanna Cherry QC MP, Jolyon Maugham QC and businessman Dale Vince (a millionaire businessman and political donor who founded the renewable electricity company Ecotricity) - The Guardian 12 September 2019.  The petitioners are asking the court to apply the Scots Law concept of "nobile officium" so as to enable the court to sign a letter to European leaders requesting a Brexit extension in the event Mr Johnson refuses to do so.

The nobile officium
is a form of "equitable jurisdiction" available to the Court of Session but it must not be confused with the legal concept of "Equity" in the law of England and Wales and originally developed by the Court of Chancery.

More information about nobile officium is available in -
  • Journal Online 14 December 2015 - The nobile officium: still relevant, still useful - "The nobile officium is the extraordinary equitable jurisdiction of the Court of Session and the High Court of Justiciary. It is a power of the court to give a remedy in two situations. First, where there is no legal rule adequately covering a given situation. Secondly, where there is a legal rule governing a situation, but its application would be unduly excessive, oppressive or burdensome. The court can use the nobile officium to grant any remedy or make any order."
A further action has been brought in the Court of Session by the same individuals - The Scotsman 1 October 2019.  They are seeking an "interdict" to prevent the Prime Minister from not complying with the terms of the European Union (Withdrawal) (No 2) Act 2019 - previous post.

Court of Session (Outer House) judgment 7 October 2019:

Lord Pentland handed down judgment in Vince, Maugham and Cherry v Boris Johnson and Lord Keen of Elie [2019] CSOH 77.  The petitioners sought various orders aimed at ensuring that the Prime Minister complies with the statutory duties imposed on him under the European Union (Withdrawal) (No 2) Act 2019 (“the 2019 Act”), and specifically with the duties to
which he is made subject by section 1(4) thereof.  The petition was brought under Chapter 14 of the Rules of the Court of Session and was not a petition for judicial review invoking the supervisory jurisdiction of the court.  No issue was raised as to the title and interest of any of the petitioners to bring the present proceedings.

The petitioners sought four substantive orders, but at the hearing Mr O’Neill QC (for the petitioners) explained that he was seeking at this stage orders in terms of heads (i) and (ii) of the prayer only.

Head (i) sought interdict against the PM and any minister of the Crown(and anybody acting on their behalf or at their request) from taking any action that would undermine or frustrate the will of the UK Parliament as enacted in the 2019 Act.

Head (ii) sought an order under section 45(b) of the Court of Session Act 1988 ordaining the PM, in the event that neither of the conditions in subsection (1) or(2) of section 1 of the 2019 Act has been fulfilled by 11 pm on 18 October 2019, to sign and send the letter referred to in subsection (4) prior to 3.00pm on 19 October 2019, without any amendment, alteration or addition, either within the letter or in any separate letter, note, addendum or message, and to take all necessary steps to achieve the extension of the period under Article 50(3) of the Treaty on European Union due to end at 11pm on 31 October 2019.

The court refused the orders requested because, according to the judge, "there can be no doubt that the first respondent now accepts that he must comply with the requirements of the 2019 Act and has affirmed that he intends to do so."  

Paragraphs 45 and 46 of the judgment are worth noting:

[45]. .... I approach matters on the basis that it would be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the Crown for the Prime Minister or the government to renege on what they have assured the court that the Prime Minister intends to do.  As the Advocate General’s note of argument says: “As already noted, the Prime Minister is well aware of his duty to obey the law, including the frustration principle, and is and will continue to be advised in the usual way on any issues as to the lawfulness of his proposed actions.”    [My emphasis].

[46] My conclusion on the main issue of substance raised in the present proceedings may, therefore, be expressed as follows.  Having regard to the Prime Minister’s and the government’s unequivocal assurances before the court in the pleadings, in the note of argument and in oral submissions that they will comply with the 2019 Act, I am not persuaded that it is necessary for the court to grant the orders sought or any variant of them. I am not satisfied that the petitioners have made out their case based on reasonable apprehension of breach of statutory duty on the part of the Prime Minister. 

Court of Session (Inner House) 9 October 2019:

The Inner House has delayed a decision on signing a letter seeking an extension to Article 50 if Prime Minister Boris Johnson refuses to do so.- Scottish Legal News

Judgment is at Petition of Dale Vince and others and Advocate General [2019] CSIH 51

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