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].
Having been in the Court of Session yesterday and listened to Lord Carloway’s comments in response to counsels’ arguments, this seemed the likely outcome: i.e. “wait and see.” What will be interesting will be the Court’s reaction if the PM sends the required letter but also sends another letter asking the EU states (or one of them, since they must be unanimous) to refuse to grant an extension.
I was in a meeting early this morning at which I mentioned the upcoming judgment. I was immediately asked how I thought it would go and refused to be drawn. Just as well, in the circumstances.
David Lamming’s comment, “If the PM … also sends another letter asking the EU states (or one of them, since they must be unanimous) to refuse to grant an extension.” raises an interesting question: would such an action be lawful as it would be in contravention of the spirit and intention of the Act, even if not the actual wording?
BBC News Online has reported this earlier today (10 October):
‘On Wednesday, Business Secretary Andrea Leadsom suggested the PM was gearing up to bypass legal obstacles to a no-deal Brexit by sending one letter requesting an extension and, in the same instance, submitting a second memo telling European leaders he does not want one. Asked on ITV’s Peston programme whether the idea of sending two letters to the EU was a possible loophole, Ms Leadsom replied: “Absolutely.”‘
So much for this Government’s respect for the rule of law. No doubt this will embolden the Opposition parties to seek to take control of the agenda in the House of Commons again next week.
Joanna Cherry QC MP tweeted this riposte to the news item “No it’s not because @BorisJohnson promised Scotland’s highest court to comply with the #BennAct AND not to frustrate its purpose so these silly childish tricks are out. Just as well we have the option to go back to court on 21 Oct #Brexit #ScottishBackstop”
Thanks, David. First time I’ve had a question answered, albeit indirectly, by a QC 😉
And without charge!
BBC News Online this morning (17 October):
“No 10 sources have told the BBC’s political editor Laura Kuenssberg that Mr Johnson will later ask EU leaders to reject requests for an extension to the Brexit deadline of 31 October.”
So it would seem to be a case of “See you in court!”
We now know the terms of the three letters sent to the EU following the 322-206 H of C vote on 19 October in favour of the Letwin amendment. What has not received much (if any) media coverage is the concurrent debate in the House of Lords. Of interest in the context of this thread is this extract from the speech of Lord Pannick QC:
“The Prime Minister would have a legal duty not to frustrate the Benn Act by adding some other phrases to the letter or sending another, conflicting letter. If the Prime Minister did not comply with this legal duty, I do not see how any reputable Attorney-General or Lord Chancellor could remain in post.”
He added later:
“I doubt that the courts would interpret the Benn Act as also requiring the Prime Minister to refrain from pursuing his policy objectives by other political means.
“What if the Supreme Court in the next two weeks were to hold that the Prime Minister has acted unlawfully by breaching the Benn Act and persuading the EU not to offer an extension? As a matter of EU law, would we still be treated as leaving on 31 October because the EU has not offered an extension, or would the requirement in Article 50.1 be determinative? I quote: ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’.
“That question would have to be decided by the Court of Justice of the European Union.”
It would be of interest to know whether the letter the PM signed was drafted or approved by the Attorney-General. The potential significance of tomorrow’s resumed hearing in the Court of Session cannot be exaggerated. (The Supreme Court has no cases scheduled for hearing on Monday 28 or Wednesday 30 October.)
The Court of Appeal (Lord Burnett of Maldon CJ, Sir Terence Etherton MR and Dame Victoria Sharp P) is currently hearing an appeal by Liberty on this very issue. This is the summary of what the hearing is about:
Application for permission to appeal the Order of Supperstone J (11 October 2019) that refused an application for a rolled-up expedited hearing.
The application for judicial review concerns the Prime Minister’s compliance with his legal obligations under and in connection with the European Union (Withdrawal) (No.2) Act 2019 that imposes specific duties to take specified steps to seek and obtain an extension of the period under Article 50(3) of the Treaty on the European Union in order to prevent the UK leaving without an agreement with the EU on 31 October 2019. If certain conditions are not met, then the Prime Minister must by no later than 19 October 2019 send the letter required by s.1(4) of the Act to the President of the European Council requesting an extension of the Article 50 period.
The principal focus of the Appellant’s application for judicial review concerns the Prime Minister’s obligations not to frustrate the purpose and provisions of the Act.
The hearing (in Court 73 at the RCJ) is being live-streamed:
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