The First Division of Inner House of the Court of Session has delayed advising its decision on the reclaiming motion and petition to the nobile officium in Vince & Ors v The Advocate General  CSIH 51 P845/19 and P900/19, though it had intended to do so today.
The petitioners had reclaimed against the refusal by the Lord Ordinary (Lord Pentland) in the Outer House on 7 October of their petition for implement and interdict: Vince v Prime Minister  CSOH 77). They also sought the following orders in a petition presented to the Inner House under the nobile officium:
- to make orders (a) ordaining that a letter in the form set out in the Schedule to the European Union (Withdrawal) (No. 2) Act 2019 be drawn up and signed by the Clerk of Court on behalf of the Prime Minister, (b) ordaining that this letter so signed be sent to the President of the European Council, (c) issuing a declarator that a letter in this form sent by this court shall substitute for, and shall be for all purposes and effects in law equivalent to, the letter which the Prime Minister was and is under a statutory obligation to sign and send to the President of the European Council;
- to impose such other conditions and penalties (including fine and imprisonment, where consistent with the European Union (Withdrawal) (No. 2) Act 2019) as the court shall in all the circumstances seem proper and appropriate in the event of the order not being implemented; and
- to make such order to dispose of this petition as the court thinks fit.
The submissions by the parties are here. Delivering the Opinion of the Court, Lord President Carloway said, in part:
“ 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.
 The situation remains fluid. What is known is that, over the next two weeks, circumstances will inevitably change. 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 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. Whether that is so or not, refusing the reclaiming motion would be without prejudice to the petitioners’ ability to return to court, should the Prime Minister be found not to have complied with the terms of the 2019 Act. That is a matter which can only be ascertained at midnight on 19 October. 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” [emphasis added].