The Inner House of the Court of Session also decided to continue until after 19 October 2019 its consideration of a petition to the “nobile officium” asking the court to send the letter if the PM fails to comply with the duty imposed upon him by the European Union (Withdrawal) (No. 2) 2019.

The Lord President, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that the petitioners, businessman Dale Vince, barrister Jolyon Maugham QC and Joanna Cherry QC MP, were seeking to appeal against Lord Pentland’s decision dated 7 October 2019, in which the Lord Ordinary held that it was unnecessary to grant the “coercive orders” sought due to the “unequivocal assurances” given by the UK Government in its pleadings that Prime Minister Boris Johnson would “comply fully” with all the requirements imposed on him by the so-called “Benn Act” and would “not seek to frustrate its purpose”.

The petitioners were also seeking to invoke the “equitable jurisdiction” of the court to make an order that the clerk of court should draft and sign the letter requesting an extension under Article 50 of the Treaty of the European Union on behalf of the Prime Minister if he failed to do so.

‘Nobile officium’

In both petitions it was claimed, and not disputed, that the Prime Minister and others in his office had made various statements in Parliament and to the media to the effect that he would not seek an extension, as he is required to do by section 1(4) of the 2019 Act no later than 19 October 2019, if there was no agreement on the UK’s withdrawal from the EU.

The respondent’s answers in both actions were to the effect that the court could expect members of the UK Government to comply with the legislation and that they would respect any declarator made about their statutory duties.

In its original form, the petition to the nobile officium had sought interdict preventing the UK Government from taking any action that would undermine or frustrate the will of Parliament as expressed in the 2019 Act; specific performance of the Prime Minister’s duties under the 2019 Act; and interdict preventing the Government from withdrawing, cancelling or otherwise undermining the effect of any letter sent in accordance with the Act.

The respondent tabled a plea to the competency of the petition in its original form on the basis that the petitioners had an alternative remedy in the form of an action for specific performance under section 45 of the Court of Session Act 1988; such an action being appropriate for consideration in the Outer House. 

Perhaps conscious of the strengths of the competency plea, the petitioners presented the separate petition to the Outer House craving the orders for specific performance and interdict.

But the Lord Ordinary refused to grant the orders sought, having considered that it was neither necessary nor appropriate, given the respondent’s assurances that he would comply with the obligations of the 2019 Act.

‘No unlawfulness at present’

The petitioners challenged Lord Pentland’s ruling, and while the First Division judges agreed with his reasoning, the court put its decision in relation to both petitions on hold until Monday 21 October.

Delivering the opinion of the court, the Lord President said: “On the material which was available to him, the court agrees with the reasoning of the Lord Ordinary. At this stage, there is no basis for granting any of the orders sought by the petitioners in either process.

“Before coercive measures are granted, the court must be satisfied that they are necessary; ie that there are reasonable grounds for apprehending that a party will not comply with the relevant statutory or other legal obligation. In the normal case, that will often involve that party having already failed to comply with the obligation within the statutory or other time limit.

“In this case, whether the Prime Minister will ever require to send a letter containing an extension request is uncertain. The UK Government and the EU may reach a deal. Parliament may approve a ‘no deal’ Brexit. If neither event occurs, it has not been disputed that the PM must send the letter.

“Until the time for sending the letter has arrived, the PM has not acted unlawfully, whatever he and his officials are reported to have said privately or in public.

“The existence of these statements, which are made in a political context, does not give ground for reasonable apprehension of future non-compliance for the reasons given by the Lord Ordinary.”

‘Fluid situation’

Lord Carloway noted that the situation remains “fluid” and that “circumstances will inevitably change” over the next two weeks.

He continued: “If 19 October comes and goes without either of the two conditions in the 2019 Act having been satisfied and in the absence of the letter which the Prime Minister would then be required to send, the petitioners would be entitled to return to court and seek an order ordaining the PM to comply with the terms of the 2019 Act within a prescribed, and possibly very short, period. It is only once that period has expired without the order being obtempered that the court would consider authorising an official to sign the letter which the PM may have failed to do.

“The court appreciates that there is a limited amount of time before the expiry of the existing extension period. It understands the concern of persons on both sides of the political debate on the Brexit issue.

“The political debate requires to be played out in the appropriate forum. The court may only interfere in that debate if there is demonstrable unlawfulness which It requires to address and to correct. At present there has been no such unlawfulness.”

The Lord President concluded: “The normal course in such circumstances would be to refuse the reclaiming motion and the prayer of the petition to the nobile officium. There is force in the argument that the petition should, in any event, be dismissed as unnecessary, given the alternative remedies sought or potentially available in the Outer House petition.

“If there is a material change in the present circumstances, the petitioners would, if the reclaiming motion were refused at this stage, require to frame and lodge a new application in the Outer House, to seek the same orders anew, and subsequently possibly to seek any remedy available under the nobile officium.

“It is clear that there will be changes in circumstances over the next 10 days. In these circumstances requiring the petitioners to raise new, but very similar, proceedings after 19 October may render any remedy, which might ultimately be afforded by the court, ineffective as a result of the passage of time.

“The court will for these reasons continue consideration of the reclaiming motion and the petition to the nobile officium until Monday, 21 October, by which time the position ought to be significantly clearer. At that time the court will expect to be addressed on the facts as they then present themselves.”