Dale Vince & Others v Prime Minister
The following is a summary of the oral submissions at the hearing of Friday 4 October 2019, prepared by a Reporter for Session Cases who was in attendance.
1. The court heard legal arguments on behalf of the petitioners (represented by Aidan O’Neill QC and David Welsh, Advocate) and the respondents (represented by Andrew Webster QC and Chris Pirie, Advocate).
2. The petitioners sought orders in the following terms:
(i)To interdict the first respondent [the Prime Minister] and any other 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 Union Parliament as enacted in the European Union (Withdrawal) (No 2) Act 2019, particularly (but not restricted to):
(a)taking any steps (or causing steps to be taken) to send alongside the letter that is required to be sent by section 1(4) of the 2019 Act any other document, message, statement or any other addendum, addition or amendment that would seek to suggest that the intention of the United Kingdom is anything other than that set out in the letter in the schedule to the 2019 Act,
(b)taking any steps (or causing any steps to be taken) to delay the sending of the letter that is required to be sent by section 1(4) of the 2019 Act or otherwise causing it not to be received by the President of the European Council,
(c)encouraging (or causing to be encouraged) any other Member State of the European Union either directly or indirectly to disagree with any proposed extension of the period under Article 50(3) of the Treaty on European Union ending at 11pm on 31 October 2019; and to grant interdict ad interim; [and]
(ii)To ordain the first respondent [the Prime Minister] in the event that neither section 1(1) nor 1(2) of the European Union (Withdrawal) (No 2) Act 2019 has been satisfied by 11pm on 18 October 2019 to sign and send prior to 3pm on 19 October 2019 the letter set out in the schedule to the European Union (Withdrawal) (No 2) Act 2019 without any amendment, alteration or addition (either in the letter or in any separate letter, note, addendum or message) and to take all steps that shall be required in order to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union ending at 11pm on 31 October 2019.”
3. The following oral submissions were advanced on behalf of the parties.
Submissions on behalf of the petitioners
4. On behalf of the petitioners, orders were sought in terms of the prayer of the petition, namely (i) interdict in relation to ‘non-frustration’, and (ii) an order for specific performance in terms of section 45(b) of the Court of Session Act 1988. The latter order was said to be necessary given the public statements made by or on behalf of the Prime Minister, such that the petitioners did not have sufficient assurance that he would comply with the law.
5. The further orders sought, to the effect that (iii) the Prime Minister is required to sign and send the letter required in terms of the European Union (Withdrawal) (No 2) Act 2019, (iv) interdict predicated on such a letter having been sent, and (v) further orders in the event of non-compliance with any other orders of the court, could be ‘held over’ to a later stage.
6. The petitioners suggested that formal undertakings could be given to the court by the respondents and recorded in the minute of [the court’s] proceedings, essentially setting out the admissions already contained in the answers to the petition (specifically, Answer 8), in which case the court would not be required to pronounce any ‘coercive orders’ at this stage. Thereafter, if such undertakings were not complied with, the full contempt jurisdiction of the court would come into play.
7. Whilst no undertakings had been offered, it was said to have been suggested by the respondents (in their written note of argument) that the Prime Minister’s ‘affirmation’ (in answer to the petition) of the legal duties upon him was sufficiently clear and unequivocal to make orders unnecessary. This was said on behalf of the petitioners to be ‘something less than formal undertakings, but edging towards it’.
8. Under reference to the respondents’ challenge to the jurisdiction of the court, the petitioners submitted that the court’s jurisdiction was not dependent upon the issue as to where the Prime Minister was currently domiciled as an individual, nor was it important that the Prime Minister is not currently living in Scotland. Ministers of the Crown, including the Prime Minister, were deemed to be domiciled throughout the United Kingdom. Further, and in any event, the respondents had accepted that the court has jurisdiction in relation to the Advocate General for Scotland, as the Law Officer for the UK Government in Scotland. The petitioners submitted that the cases against the UK Government, and in particular the Prime Minister in respect of the duties imposed upon him as holder of that office, were ‘so closely connected’ that it was expedient and proper for the court to exercise jurisdiction.
9. Upon questioning by the court, as to whether the Prime Minister was being sued as an individual or only in his capacity as a Minister of the Crown, the petitioners stated that the position was ‘slightly hybrid’ insofar as the claim against the Prime Minister was in respect of statements made by him, which were said to amount to ‘suggestions’ and ‘threats’ that he, as Prime Minister, will not carry out the duties imposed upon him by the 2019 Act. There arose from such statements a reasonable apprehension that he would not obey the law whilst holding the office of Prime Minister. Whilst he held the office of Prime Minister, such ‘threats’ amounted to legal wrongs. The respondents’ position was misconceived insofar as it demonstrated concern for the Prime Minister’s status as an individual, and their plea in law to that effect ought to be repelled.
10. The respondents’ position was also said to be misconceived to the extent of the challenge to the competency of the procedure adopted, whereby the respondents sought refusal or at least dismissal of the petition quoad orders (ii) and (iv). According to the petitioners, proceedings brought under section 45(b) of the Court of Session Act 1988, rather than proceedings for judicial review, were appropriate as the petitioners were not seeking to invoke the supervisory jurisdiction of the court (McKenzie v Scottish Ministers 2004 SLT 1236, Lord Carloway at para 17). The fact that the application concerned matters of public law did not mean that it had to be brought by way of judicial review, at least according to Scots law. The petitioners were not concerned with the process behind, or reasons why the Prime Minister should be making the ‘threats’ of which the petitioners referred to. Nor were they asking for a review or setting aside of those threats, or asking for them to be withdrawn. They were concerned merely with the fact that those statements had been made, and formed part of a ‘continuing course of conduct’ which, given the consistency with which certain phrases had been used, appeared to represent official government policy rather than ‘a frolic of his own’ on the part of the Prime Minister. The petitioners were simply saying that the Prime Minister cannot defy the law, whereas it was repeatedly threatened that the Prime Minister will not comply with his obligations under the 2019 Act, or will sabotage or frustrate the will of Parliament, with various suggestions as to how that might be done. According to the petitioners, these amounted to a series of ‘completed acts’, and the petitioners were reasonably apprehensive that those threatening words will ‘imminently be translated to unlawful deeds’, and therefore applied for the remedies sought before the court. As an application in respect of threats to fail to perform public law duties, therefore, the summary procedure of a petition in terms of section 45(b) of the 1988 Act was the appropriate and competent manner in which to proceed.
11. As to the remedies sought, the nature of proceedings as public law rather than civil proceedings, meant that it was open to the court, if so advised, to pronounce coercive orders against Ministers of the Crown, including the Prime Minister (Crown Proceedings Act 1947, s 21; Edwards v Cruickshank (1840) 3 D 282, LP (Hope) at 306; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  UKHL 61, Lord Rodger at para 106). The court had to pronounce an effective remedy, seen in context of the course of conduct complained of, that course indicating that the Prime Minister and other Ministers of the Crown would defy the law. A declarator of what the law required was not sufficient because it would appear from that particular course of conduct that members of the UK Government felt that they were above the law, however clear the law may be. The legal duties at issue were clear and unequivocal, yet the Government was said to be looking very carefully at it, and willing to sabotage it, in order for the UK to leave the European Union no matter what the 2019 Act required, if that is thought necessary. Therefore, it could not be presumed, as it normally would be, that the Government would comply with the law when advised of what it required. Against that background, the appropriate remedy was a coercive one in terms of s. 45(b) of the 1988 Act.
12. The petitioners submitted that the respondents’ pleadings did not conform to the requirements of the duty of candour, and there were no supporting affidavits to the effect that what was said on behalf of the respondents was a true, comprehensive and wholly accurate account of Government policy. The petitioners had set out in some detail the various occasions upon which the Prime Minister and/or members of the Government had made statements to the effect that they would not comply with the duties imposed upon the Prime Minister under the 2019 Act. In response, the respondents had suggested that the court could have no regard to the Prime Minister’s statements as to whether or not he would obey the law, insofar as those statements were made in the context of parliamentary debates or answers to Prime Minister’s Questions, due to the operation of parliamentary privilege. Notwithstanding that such statements were subsequently recorded in Hansard and published in newspapers and more widely discussed, somehow the court was to disregard them altogether (see similar arguments ‘rightly rejected’ in Craig v Advocate General for Scotland 2019 SC 230). Article 9 of the English Bill of Rights 1688 did not provide some kind of ‘magic shield’ to the Executive speaking in Parliament, rather it protected the freedom of speech of Members of Parliament. This was affirmed by the UK Supreme Court in Cherry (see, also, Wilson v First Country Trust (No 2)  1 AC 816, Toussaint v Attorney-General of St Vincent and the Grenadines  UKPC 48). The contrary argument raised by the respondents was simply unfounded.
13. An affidavit would address the existence of inherent contradiction between the Prime Minister’s statements on some occasions that he would obey the law, and on other occasions that he will not obey the 2019 Act, by providing some kind of explanation. Instead, the respondents’ averments were merely offers to prove matters and not proof in itself. The difficult point was that senior counsel for the petitioners had never seen statements like those contained in Answer 8 for the respondents. The Prime Minister accepted that a letter would be sent in the form required by schedule 1 to the 2019 Act no later than 19 October 2019, but that had never before been said by the Prime Minister. The statements as to what the Prime Minister accepted in relation to the 2019 Act, which were seen by the petitioners for the first time yesterday, were directly contrary to the evidence submitted by the petitioners. Indeed, they were directly contrary to what the Prime Minister had said to Parliament yesterday evening, to the effect that if the EU chose not to show ‘corresponding willingness’ to do a deal, then the UK would have to leave without an agreement and was ready to do so.
14. If the Prime Minister’s position on reflection and having taken legal advice was different, then undertakings to that effect could be given to the court in a form that would reflect the averments contained in Answer 8. The effect would be the same whether an undertaking, interdict or order for specific performance, but the advantage of an undertaking would be that the form could be agreed by the parties and simply accepted by the court. In that event, the court would not be required to pronounce coercive orders to similar effect. However, if the Prime Minister chose to depart from what was merely said by legal representatives in averments made on his behalf, that would not result in the possibility of the court’s contempt jurisdiction coming into play, and the petitioners would be ‘back at square one’ with no effective remedy. The petitioners have a reasonable apprehension that he will do so, on the basis of previous statements by him or on his behalf.
15. The primary purpose was to ensure effective remedy. It was known that breach of undertakings brought into effect the court’s contempt jurisdiction and that it could be prayed in aid against Ministers of the Crown of the UK Government (Beggs v Scottish Ministers  UKHL 3,  CSIH 25). Senior counsel for the petitioners was not aware of any case law to the effect that the contempt jurisdiction could be engaged on the basis of averments subsequently reneged on; it may be, but if there was an equivalence, then where was the harm in giving undertakings so as to avoid any doubt? There was no downside, according to the petitioners. In the absence of an undertaking being offered, however, the court should pronounce such orders as it deemed appropriate to give an effective remedy. It was perhaps sufficient for a formal order to declare that the propositions set out in Answer 8 for the respondents reflected the correct position in law. Whilst no declarator was sought, this did not preclude the court from pronouncing a declarator to that effect, or making such matters plain within the context of its judgment. The petitioners’ primary motion was in terms of the remedies sought under heads (i) and (ii) of the prayer of the petition but the court’s overriding duty was to provide what it considered to be an effective remedy and it may well wish to pronounce a declarator reflecting the terms of Answer 8 in order to confirm that what is said to have been accepted by the Prime Minister in relation to the 2019 Act is, in fact, well founded in law.
16. In order to obtain the remedies sought, the petitioners had to persuade the court on the balance of probabilities as to the binding nature of the statutory duty on the Prime Minister. That appeared to be accepted in terms of the duties described by the respondents in Answer 8. However, the petitioners’ concern was that, in terms of Answer 15, it appeared to be said that whilst the Government was required to obey the law, it was not required to obey the 2019 Act. It was the policy of the Government to ‘give effect to the will of the British people to leave the European Union on 31 October 2019’ and how this could be ‘lawfully achieved’ was a matter for the Government. Those statements would only make sense if appropriate authority was granted to the Government by Parliament as set out in the 2019 Act. Yet there was no admission or statement to the effect that compliance with the 2019 Act meant that it could only be done if and insofar as permitted by Parliament. The 2019 Act made it ‘absolutely explicit’ that the manner in which to leave the EU was a matter for Parliament, not the Government. Accordingly, the respondents had ‘misrepresented’ and ‘misunderstood’ the obligations imposed upon the Government.
17. There was no basis upon which it could be said that Government policy to the contrary effect was not subject to the law. There was no freestanding idea of Government policy that could be achieved unlawfully, and it was the province of the court to affirm that position in relation to the policy of leaving the EU on 31 October without the sanction of Parliament or seeking a change in the law. The respondents’ position was ‘utterly opaque’ and ‘incomprehensible’ in stating that the UK would leave the EU on 31 October without breaching the 2019 Act. Those two statements were contradictory, and the respondents ought not to be allowed to maintain them by way of ‘continued obfuscation’ in order to suggest that, somehow, the law did not apply to this Government or the Prime Minister because it does not agree with policy. There was a constitutional responsibility to maintain the constitution, uphold the rule of law, respect Parliament and comply with the law it has passed, even where the Government disagreed with it (see, eg, Cherry v Advocate General for Scotland  UKSC 41 at paras 30 and 61). 18. The repeated statements of the Prime Minister and those who act in and advise his Cabinet were ‘corrosive’ of the duty to uphold the rule of law, respect the constitution, comply with conventions and uphold traditions. These statements were apparently due to partisan interests of Government policy in the face of an ‘inconvenient’ Parliament that disagreed with the Prime Minister. Accordingly, it was important for the court to say ‘enough is enough’ (in the words of the Prime Minister), and to grant coercive orders where no undertakings were offered in order to bring the confusion, misunderstanding and misrepresentation to an end.
19. Those repeated statements formed a clear basis for the petitioners’ apprehension that the Prime Minister would not comply with his duties under the 2019 Act. The averments set out in Answer 8 were not sufficient to give comfort or allow the court to consider those apprehensions to be unreasonable. In particular, the ‘anti-frustration’ order was required precisely because none of the statements issued in the name of the Prime Minister had been disavowed. The petitioners produced an affidavits to this effect, including references to the content of relevant newspaper reports, and an interview by the Prime Minister on the Andrew Marr Show on 29 September 2019, suggesting that it was Government policy to sabotage and frustrate the purpose of the 2019 Act. Also cited by the petitioners were the Prime Minister’s statement to the House of Commons on 3 October 2019 (to the effect that the UK had to leave the EU on 31 October without an agreement and was ready to do so), and his speech to the Conservative Party conference, in which readiness and willingness to leave the EU on 31 October ‘come what may’ was expressed.
Submissions on behalf of the respondents
20. On behalf of the respondents, the court was invited to refuse the orders sought at this hearing and to refuse the petition. The court would be entitled to refuse for want of insistence the remaining orders which the petitioners sought to be ‘held over’. Alternatively, the petition ought to be refused for the sole reason that there was no reasonable apprehension of illegality.
21. On the question of jurisdiction, the respondents had expressly acknowledged that the court has jurisdiction insofar as the petition proceeded against the Prime Minister as the holder of that office. The respondents had merely sought to deal with the averments made against them, in which the petitioners had sought to ‘run two horses’ by proceeding against the Prime Minister as an individual and separately as an office holder. The respondents’ position reflects their acceptance that the Prime Minister was accountable as an office holder but not as an individual. The statute required the Prime Minister from time to time to do certain acts, and was not directed against Mr Johnson personally, contrary to certain of the petitioners’ averments that appeared to be directed against him personally. Accordingly, it was admitted that the court has jurisdiction insofar as the proceedings were directed against Ministers of the Crown.
22. As to competency, it was pars judicis [the court’s duty] to have regard to questions of competency. The respondents sought to assist the court in understanding the preliminary point said to arise. In short, section 45(b) of the Court of Session Act 1988 provides that the court may, ‘on application by summary petition’ order the specific performance of any statutory duty. The question arises: what is a summary petition, not being defined in the Act or elsewhere in the Rules of Court? Having regard to Chapter 58 of the Rules of the Court of Session (RCS), in particular rules 58.1 and 58.2, an application to the supervisory jurisdiction of the court “includes” (rather than “including”, as it was worded prior to 22 September 2015) an application made under section 45(b) of the 1988 Act. The plain reading of the rule was that an application to the supervisory jurisdiction includes applications under s. 45(b) and, in terms of rule 58.1(2), such an application ‘must’ be made by petition for judicial review. That was significant because, if incompetently raised, it could not be cured by the court because specific rules dealt with transfers to and from judicial review procedure (rules 58.15 and 58.16), transfer ‘to’ judicial review procedure being limited to ‘actions’. A petition was, of course, not an action. Whilst the Rules of Court referred to ‘causes’, which were any proceedings in the court, a distinction was drawn between petitions and actions. The present case not being an ‘action’, rule 58.15 could not be prayed in aid to cure the incompetency. Moreover, the existence of a specific provision for the transfer of ‘actions’ and not ‘petitions’ to judicial review procedure, it would not be appropriate to use any other provision in the rules to do so.
23. The case of McKenzie v Scottish Ministers (supra), viewed in its proper context, referred to the wording of the relevant rules as at 2004 – notably “including” rather than the much more categorical word “includes” referred to above. The observations of Lord Carloway, sitting in a Lord Ordinary in that case, were, in any event, obiter and qualified to the effect that they did not amount to the expression of a concluded view. in that context, Lord Carloway was clearly trying to explain his concerns and justify them against the particular wording of the rule then in force. The different wording of the current rule tended to suggest a departure from the apprehension expressed in that case. Applying the rule in its current form, it states expressly that the application under section 45(b) ought to have been raised under the court’s supervisory jurisdiction. It hasn’t been, therefore it is incompetent.
24. Further, at common law, judicial review required individuals to perform statutory duties (see, eg, West v Secretary of State for Scotland 1992 SC 385, LP (Hope) at 412-413; and Forbes v Underwood (1886) 13 R 465, in respect of the court’s ‘supereminent jurisdiction’, cited in West at 399). Where a private individual performed functions entrusted to them, a claim in respect of failure to perform that duty had to be brought by judicial review, whether under common law or statute. Otherwise, it would be rather odd if the nature of the remedy was defined by whether a statutory or non-statutory duty was sought to be enforced. If the respondents’ interpretation were correct, then the same procedure applied in either case. Whether by contract or statute, an obligation to determine something was secured by application the court’s supervisory jurisdiction (see, eg, Watt v Strathclyde Regional Council 1992 SLT 324, cited in West at 411). The example, posited by the court, of the enforcement against a company of a statutory duty under health and safety legislation to provide certain facilities for its employees, such as by a trade union, also had to be done by judicial review. Accordingly, the reasoning of Lord Carloway in McKenzie was misconceived, at least as the relevant rule of court presently exists. The same ‘degree of flexibility of construction’ was no longer open to the court in construing RCS Chapter 58.
25. The respondents could not assist the court as to why the particular change had been effected. However, the court had now provided in its rules that, provided there is a statutory component, even in the case of an otherwise private dispute, enforcement must be by way of the supervisory jurisdiction of the Court of Session. The respondents agreed with the proposition, ventured by the court, that the view appeared to have been taken that the performance of a statutory duty as envisaged in section 45(b) of the 1988 Act had a public law dimension to it, whereas section 45(a) did not, and was therefore excluded. This was said to be consistent with the requisite tripartite relationship inherent in judicial review disputes. In any event, the competency point was a relevant one and had to be addressed. Accordingly, the respondents invited the plea to be sustained, leaving only the question of interdict to be determined.
26. The Advocate General’s remaining submissions related, broadly, to (i) whether in fact there were reasonable grounds of apprehension that a legal wrong may occur in the future; (ii) whether interdicts were sufficiently specific to be enforceable; and (iii) whether implement was justified on its terms, or was premature. However, the question of ‘reasonable grounds’ was said to be the primary question in these proceedings. 27. The petitioners had made reference to a number of matters, some of which pre-dated the 2019 Act and were therefore of questionable value or materiality in assessing the intention of the Prime Minister to comply with its terms. The petitioners also referred to statements of others, for which the Prime Minister could not be held responsible, or statements that were simply unattributed. There was now a ‘clear statement’ as to what the Government will do in terms of the requirements of the 2019 Act, which has been put on record so that there can be no doubt. Those averments were made on clear and carefully considered instructions, and were averments made by a Law Officer of the Crown who was also an Officer of the Court. That ‘peculiar juxtaposition of responsibilities’ was said to underlie the respect that was traditionally given to representations made by the Law Officers, whether in written answers or in oral statements in court. The answers were lodged on behalf of the Advocate General, on behalf of UK Government, including the Prime Minister in his official capacity. Indeed, in the European framework, ‘article 50 communications’ were conducted through the UK Government and that was the framework within which the 2019 Act operated insofar as the request for an extension of time was made by the Government. Accordingly, the claim fell to be judged on the basis of what was stated in the answers to the petition, and the court should place ‘significant and conclusive weight’ on the statements that had been made. The position of the Prime Minister could not be clearer in terms of the express obligations to be complied with no later than 19 October under the 2019 Act. Those statements effectively answered the concerns in the petition.
28. There was no requirement for the same statements to be converted into an undertaking to the court, albeit that the petitioners may be satisfied by that. There were two components to the statements made – first, that there would be compliance with the clear provisions of the 2019 Act, and secondly, that there was a recognition of the requirement to comply with the ‘anti-frustration’ principle. The statements of recognition and compliance appeared to be adequate to deal with the petitioners’ apprehensions. Nonetheless, it was simply unnecessary to give any undertaking in those terms. Nor would it add anything to that which had already been identified in the pleadings. The court was entitled to ‘take extra comfort’ in the knowledge that not only was there an ability to hold private litigants to account on their pleadings, particularly if presented directly to address an issue upon which the court relied, but also that the party in question was an Officer of the Court and a Law Officer of the Crown. The court would deal with any question of contempt just as it might deal with a litigant giving evidence, and there was no reason for the position to be any different in the case of a party adopting a particular argument in law and then departing from it.
29. The court was entitled to look at the body of material produced, and if the question was of the balancing of weight, the weight of the other material did not go anywhere near the weight of the clear position adopted in the pleadings. It was inappropriate to draw an adverse inference from the failure to provide an undertaking where there was no compulsion or obligation on anyone to do so. No weight could be attached to such a factor, particularly where the explanation had been given that it was thought to be unnecessary as the position had been stated to the court in the pleadings. These were judicial review proceedings, in which parties’ positions were ordinarily stated in this way, unlike civil actions for damages where issues turned on matters of evidence. Nonetheless, it was part of the totality of the picture that it was the policy of the Government to give effect to the referendum vote and exit the EU on 31 October 2019.
30. It was well known that the 2019 Act was not a Government Bill; that there was Government opposition to the extension sought in the 2019 Act; that the Government position was to leave on 31 October. Those were all factors in assessing the weight to be attached to the statements in question. It had to be borne in mind that the statements relied upon by the petitioners were only part of the picture. The respondents had also lodged an inventory of documents containing other statements where the Prime Minister and other Ministers had identified that the Government would comply with the law. The Government was conducting its negotiations [with the EU], which to all intents and purposes appeared to have come to a halt, but the events of the last 24 – 48 hours had demonstrated a re-engagement [by the EU] on the withdrawal issues. The Government was entitled, so long as did so in accordance with the law, to take whatever position it wished to advance such negotiations. Statements had been made in order to make the Government’s policy and intent clear, and it did so in order to be effective and to appear to be effective. As and when acceptable changes were made to the proposed withdrawal agreement, it would be brought back to Parliament in order to provide the Government with the necessary legal authority to proceed. The issue had been focussed in these proceedings, and that was why the position was now clearly stated. The conduct of negotiations was as much a matter of what was not said, as well as what was said. The Government ought to be entitled to conduct negotiations on that basis, free from having to give an undertaking to the court, which may itself affect negotiations.
31. It would be odd if the Prime Minister was not entitled to the same protection as other Members of Parliament arising from parliamentary privilege. Matters covered by parliamentary privilege could not be used by the petitioners to ‘make their point’; parliamentary statements could not be used to ‘make argument’. They could be observed, and reference could be made to them in order to identify issues of fact, but they could not be used to advance argument as was done here by the petitioners. They may provide factual background to policy, such as in the example posited by the court of ministerial statements relied upon in the interpretation of legislative provisions, but that did not necessarily indicate that they could be relied upon for the purposes of advancing argument. That may be a fine distinction, but it was a distinction nonetheless.
32. In adherence to the principle that parliamentary privilege applied, the respondents had not included a further schedule of parliamentary statements by the Prime Minister and other Ministers. It was not considered by the respondents to be appropriate to do so, but could be provided if the court considered it appropriate to do so. In any event, it remained appropriate to understand the context in which the statements were made, namely that the Government was seeking to achieve the result of leaving the EU on 31 October, and to do that enter a withdrawal agreement, and to do that take a [negotiating] line. Nothing was being said that was inconsistent with the Government’s desire to achieve a withdrawal agreement, so that the UK can leave, and will leave, on 31 October.
33. With regard to the terms of the interdict sought, the respondents submitted that some questions of specification arose. In any event, it would be quite inappropriate, bearing in mind that the Government was conducting negotiations, for the court to ‘in effect enter the negotiating arena’ by saying what could and could not be done. If the Government accepted the ‘no-frustration principle’, and accepted that it applied, it was ‘potentially destructive’ of its negotiating position if its hands were effectively tied by undertakings. The position set out in Answer 8 did not tie its hands, and that was why it was presented in that way, as to not tie the hands of Government in its negotiations. Even something as simple as the court expecting, and the Government therefore giving, an undertaking may be constructed in a manner affecting the Government’s position in negotiations.
34. The primary question was whether the court took the view that there was a reasonable apprehension that a legal wrong was likely to occur, standing what was said in the pleadings, and how the respondents submitted that the other material ought to be viewed. The respondents submitted that that the court could not take the view in light of the entire material that there was such a reasonable apprehension.
35. The respondents acceded to the view, posited by the court, to the effect that all statements had been said in a political context, and that was the ‘admirably succinct’ (rather than ‘opaque’ as suggested by senior counsel for the petitioners) qualification expressly set out in Answer 15. The manner in which the policy was ‘lawfully achieved’ was a matter for the Government, negotiations in the international sphere were a matter for the Government, and it was not for the court to impose conditions thereon. Subject to the 2019 Act, and the ‘frustration principle’, both of which the Government had clearly acknowledged in Answer 8, there could not be rationally concluded that there was a reasonable apprehension of wrong, notwithstanding anything that had been said in past.
36. The respondents had no difficulty with the court saying that the orders sought by the petitioners were refused on the basis of the averments made by respondents. That was why the averments had been made, to make the position clear to the court, so that the court could rely on that position, both in terms of compliance with the strict wording of the 2019 Act, and the freedom to negotiate going forward in the knowledge that the terms of 2019 Act exist. To that extent, declarator would be the appropriate remedy. To go further would be to exceed the proper judicial function in the delicate context of international functions that were traditionally outwith the scope of the court to interfere. The Government would continue to be advised on the lawfulness of their proposed actions, and it would be inappropriate to impose further specific requirements, which may only frustrate the ability of Government to conduct negotiations. Such a result would be ‘disappointing’ insofar as the Government’s approach appeared to have achieved some movement [from the EU].
37. With regard to the order sought for implement, a number of fundamental difficulties arose. First, the order innovated on the requirements of the 2019 Act both as regards the ‘trigger’ and time for compliance. The 2019 Act permitted up to the end of 19 October 2019, yet the petitioners required things to be done by 11pm on 18 October and 3pm on 19 October. The respondents were at a loss as to the basis for any such requirements. The 2019 Act required the relevant letter to be sent, and no more, whereas the order sought further steps to be taken and was not specific enough to be enforceable, particularly at risk of penalties being sought for non-compliance.
38. In any event, such an order could not be sought unless there had been a breach of duty. There could be no prospect of failure to comply until after 19 October 2019. The 2019 Act recognised that nothing required to be done before then, and it might be the case that nothing required to be done thereafter. An apprehended breach of statutory duty was not sufficient as the basis for an order under section 45(b) of the 1988 Act. It provided for specific performance, and therefore required something to be done, rather than a declaration that something ought to be done. It provided for an order to be granted where there had been non-compliance. If the duty was yet to be implemented, there could not be non-compliance. The court would be wrong to order specific performance until such time as performance could be achieved. Until such time, how could the court know that the duty would not be performed? Even after assessment of the evidence, the court would still be left with a period of time during which the duty could be complied with, and so the court could not act before non-compliance had occurred. Accordingly, the remedy ought not to be granted and, in any event, it was unnecessary.
39. Separately, the person obliged to act was the Prime Minister, therefore getting someone else to do it would be beyond the statutory obligation (as the terms of the interdict sought to address ‘anybody acting on their behalf of at their request’).
40. In a brief reply, the petitioners made reference to, and produced to the court, a press release by a No. 10 Downing Street source, published on the BBC website, apparently in response to documents published by the Scottish court, to the effect that the Government would comply with the 2019 Act, but that the Act imposed only a ‘narrow duty’ to send a letter and it could be interpreted in different ways and did not prevent the Government from doing other things that do not cause delay. The Government was said to be making its true position on delay known privately in Europe, and that its position would become public soon. The petitioners submitted that this appeared to be ‘undercutting’ the previous understanding of Answer 8, that the Prime Minister accepted that he was subject to the public law principle that he could not frustrate the purpose or provisions of the 2019 Act. It appeared to be thought, instead, that the ‘frustration principle’ related only to a very specific narrow duty concerning the letter requesting delay.
41. The petitioners submitted that this was a ‘rather peculiar and unsustainable’ interpretation. The interdict had been set out in the petition in order to avoid that kind of ‘spin’, ‘misunderstanding’ and ‘misrepresentation of the law’, which was said by the respondents to be necessary in order for the Government to conduct negotiations. The respondents had not suggested that the specific examples of frustration set out there were not proper examples of how the principle would apply. It was precisely because of evidence to the effect that it would be interpreted incredibly narrowly that the petitioners had set out precise examples of threatened action that would in fact be contrary to the ‘frustration principle’. Accordingly, coercive orders were required.
42. The respondents’ ‘real defence’ seemed to be that, if orders were pronounced in the manner sought, this would tie the hands of the Government in negotiations. However, the Prime Minister had deliberately said that he will obey the law but will not obey the 2019 Act. Accordingly, the petitioners required an effective remedy to protect constitution and uphold rule of law.
43.Whilst it was suggested that the proceedings ought to have been raised by judicial review, the basic point was that an Act of Sederunt, made by delegated power, could only alter procedural matters and could not change the substance of the law as to the supervisory jurisdiction (Taylor v Marshalls Food Group (No 2) 1998 SC 841). The present application was clearly not an application to the supervisory jurisdiction (Doherty v Scottish Ministers 2012 SC 150; Ruddy v Chief Constable, Strathclyde 2013 SC (UKSC) 126). The complaint that it had to be brought by way of an application for judicial review was simply unsustainable, apart from RCS Chapter 58, which had to be subordinated to section 45(b) of the 1988 Act.
44. A reasonable apprehension was clearly sufficient basis to make an order under section 45(b), as was apparent from the following section 46, which allowed that an order for specific performance may be granted in the same circumstances as the court may grant interdict. The court may also grant interim orders regulating the subject matter of the petition. Given that interdict and interim interdict could be granted on the basis of reasonable apprehension, the same applied to positive orders under sections 45 and 46. Any suggestion otherwise was simply unsustainable.
45. Finally, there was absolutely no basis for the claim that something put in pleadings on behalf of the Advocate General had conclusive weight to outweigh such a reasonable apprehension. Therefore, the petitioners renewed the motion made at the outset of proceedings.
The court made avizandum and indicated that judgment would be issued on Monday.