Dale Vince & Others v The Prime Minister & The Advocate General for Scotland
The following is a summary of the oral submissions that were presented at the Hearing before the First Division of the Inner House of the Court of Session on Thursday 8 October 2019, prepared by a Reporter for Session Cases who was in attendance.
1. The court heard arguments on behalf of the petitioners and reclaimers (represented by Aidan O’Neill QC and David Welsh, Advocate) and the respondents (represented by David Johnston QC, Andrew Webster QC and Chris Pirie, Advocate).
2. The petitioners reclaimed against the decision of Lord Pentland pronounced on 7 October 2019 in which the petition for implement and interdict was refused (Vince v Prime Minister  CSOH 77).
3. The petitioners also sought the following orders in a petition presented to the Inner House under the nobile officium: “(i) to make orders to the following effect in the exercise of this court’s nobile officium: (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; (ii) to impose such other conditions and penalties (including fine and imprisonment, where consistent with the European Union (Withdrawal) (No. 2) Act 2019) as to the court shall in all the circumstances seem proper and appropriate in the event of the order not being implemented; (iii) to make such order to dispose of this petition as the court thinks fit…”
4. The following oral submissions were advanced on behalf of the parties.
Submissions on behalf of the petitioners and reclaimers
5. The reclaiming motion should be allowed. An order in the petition to the nobile officium should be granted but extract of the decree should be superseded until 21 October 2019.
6. It was noted that no undertakings had been offered by the Prime Minister (‘the PM’) in the proceedings before the Lord Ordinary. No reasons were advanced to explain that failure. It was a standard practice for undertakings to be offered on the part of government where that was appropriate, and this court often relied upon them.
7. The significance of an undertaking was that, if breached, the court’s contempt jurisdiction could be invoked. If it were accepted that the answers to the petition lodged on behalf of the respondent (in which it was accepted that the PM was under a duty to send the letter) could allow the court to invoke its contempt jurisdiction, then, for the comfort of the petitioners, that should be confirmed in open court by the respondent.
8. The answers appeared to be clear as to what the PM accepted was his statutory duty. However, the first time that had been accepted by the PM was when the answers were lodged on 3 October. The problem was that there had been clear briefing from No 10 Downing Street that any acceptance before this court as to the PM’s duties was not fully and properly binding on him.
9. There had been political statements made – even after the answers were lodged – that were a repudiation of those answers. That was important and it could not simply be dismissed as the PM’s aides going ‘off message’ or speaking in an ill-considered manner.
10. This was government-sanctioned policy. Statements made in the public domain were to the effect that the government would push for a no deal Brexit, whatever the Benn Act said. These statements had been repeated over the weekend too.
11. In the Telegraph yesterday there had been an article in which it was said that the PM was going to go to the Supreme Court to challenge the Benn Act and avoid sending the letter. It was said by the source of the article that it was important that the PM be forced to sign the letter rather than do so voluntarily.
12. This was contradictory to what the PM said in his answers. That was significant as the Lord Ordinary proceeded on the basis that he could rely upon what was said on behalf of the PM in court. The PM had a duty to be consistent in his view and to uphold the rule of law. But instead he was saying what people wanted him to say: saying one thing to sympathetic journalists and another to the court.
13. In the Spectator this morning an article was published that stated the PM would try to scupper any delay to Brexit. That would be contrary to the frustration principle.
14.It was clear that it was official government policy to undermine the policy of the 2019 Act by attempting to bully other EU countries into refusing to grant an extension. That was unlawful as it was contrary to the frustration principle set out in the Padfield case.
15. That was why the petitioners had difficulty in accepting the conclusion of the Lord Ordinary that the PM could be trusted to comply with the 2019 Act. Those advising the PM had a different understanding of the PM’s intentions and it was not good enough to dismiss the statements made as mere politics. This was politics being used to subvert the rule of law.
16. This was serious stuff and the PM appeared to be speaking to his base, to use a Trumpian phrase. When they go low, the rule of law goes high.
17. In relation to the nobile officium, its function was to preserve the rule of law. It was accepted that this was an unprecedented step, but these were unprecedented times.
18. The court could grant an order under the nobile officium but still give the PM the opportunity to comply with the 2019 Act and comply with the assurances he had given to the court. By suspending extract of the decree until 21 October 2019 the PM could be given the chance to comply with the law and send the letter. Only if he failed to do so would the decree be extracted and the letter signed on his behalf on the authority of the court.
19. Section 45 of the Court of Session Act 1988 was not an alternative remedy, as it concerned enforcement against individuals. Only the nobile officium could give real protection by requiring the letter to be signed.
20. The Lord President asked whether the Lord Ordinary could have authorised signature of the letter. It was submitted that the Lord Ordinary has refused any remedy but that did not preclude the exercise of the court’s nobile officium jurisdiction in this case. It was an unprecedented situation and the court was being asked to ensure that the policy of the 2019 Act was fully realised.
21. It was accepted that the sending of the letter involved the conduct of foreign affairs but the prerogative power to conduct foreign affairs was not untrammelled. It was subject to the rule of law, as the Supreme Court held in the Miller case. Even more importantly, when it came to EU law, the prerogative power could not be used to adversely affect private EU law rights.
22. The court had the power to make the order sought in the nobile officium petition. There was a reasonable apprehension that the PM would not comply with the 2019 Act – no clear undertaking had been given.
23. It was accepted that the nobile officium was an equitable remedy but this was no bar to the orders being granted in this case. Similarly, the fact that there was no precedent was no bar to the remedies sought. The purpose of the nobile officium jurisdiction was to provide a practical and workable solution to legal problems where the law provides not answers.
24. Previous cases established that where a party was unable or unwilling to sign a document he was legally obliged to sign, the nobile officium would be invoked to authorise the clerk of court to sign on behalf of the recalcitrant person. That was the situation here. Necessity was established by a clear refusal to sign. Those cases had clear parallels to the present one.
25. An order of court authorising the signing of the letter on behalf of the PM was the only way to preserve the rule of law. It was the only effective remedy available to the petitioners.
Submissions on behalf of the respondent
26. The reclaiming motion should be refused and the decision of the Lord Ordinary adhered to. The grounds of appeal would be addressed in turn.
27. In relation to the ground of appeal 1, it was submitted that the Lord Ordinary did not err in holding that there was a reasonable apprehension of a breach of statutory duty.
28. This was the primary argument before the Lord Ordinary. The weight to be attached to the statements relied upon by the petitioners was a matter for the judgment of the Lord Ordinary and the Inner House could only interfere with that assessment if the Lord Ordinary erred in principle or if his decision was clearly wrong.
29. The Lord Ordinary was entitled to weigh those statements in the balance against the clear position adopted by the PM in his answers. The Lord Ordinary did not say that he did not look at the statements. He did so but attached little weight to them, as he was entitled to do.
30. The government was entitled to have a policy inconsistent with the Act, which was introduced by the opposition. That did not mean that the government would not comply with its terms. The government was entitled to promote its policies publicly without frustrating the Act and was entitled to express its views on it.
31. It was also significant that the Act allowed for space to negotiate. The government was entitled to maintain its policy position that the UK should leave the EU on 31 October 2019 and could negotiate in the meantime. There was room for negotiations in the Act. The court should be very slow to enter into the negotiating field.
32. The Lord Ordinary was correct to view the statements relied upon by the petitioners in the political context and to weigh them in the balance against the clear statements made to the court on behalf of the PM.
33. The Lord Ordinary was entitled to rely upon statements made in the answers and in court by Law Officers of the Crown. The court frequently relied upon such statements. Such statements had significant and overwhelming weight.
34. In contrast, the statements relied upon by the petitioners were not all made by the PM, some of them pre-dated the Act, some were made in Parliament and subject to parliamentary privilege, they were made in the context of political rhetoric, and some public statements of the PM stating that he would comply with the Act were ignored by the petitioners.
35. The Lord Ordinary was entitled to weigh all that material in the balance and conclude that there was no reasonable apprehension of breach of the Act.
36.Turning to ground of appeal 2, it was submitted that this was essentially a restatement of the first ground. This was in any event a point not taken before the Lord Ordinary. Ultimately, the Lord Ordinary was entitled to attach great weight to answer 8 and he did not err in doing so.
37. In relation to ground of appeal 3, the Lord Ordinary did not err. The exercise of foreign affairs powers would not affect EU rights, as any deal reached with the EU would require to be approved by parliament, as could be seen when the previous deal was rejected. The point was that negotiations did not affect rights.
38. The petitioners adopted too narrow a view of the frustration principle and failed to recognise that the 2019 Act allowed for negotiations to be carried out.
39. In relation to ground of appeal 4, it was accepted by the petitioners that the only reason why the PM was a respondent, and the only reason he had any duties under the 2019 Act, was due to him holding the office of PM. There was nothing in this ground.
40. Lastly, ground of appeal 5 was irrelevant. Reference to the Brexit cliff edge amounted to no more than saying that the case was urgent. However, urgency was totally irrelevant to the question of whether there was a reasonable apprehension of breach of the Act.
41. Urgency may be relevant to the question of remedy but had nothing to do with the merits of the case.
42. The main issue before the Lord Ordinary was reasonable apprehension and he decided the case on that basis.
43. The Lord Ordinary did not err.
Petition to nobile officium
44. It was submitted that the petitioners had failed to address the threshold requirement. The existence of section 45 of the Court of Session Act 1988 completed removed the requirement for resort to the nobile officium.
45. The cases involving signature of conveyancing documents relied upon by the petitioners did not involve public law issues. In all the cases there was an enforceable legal obligation that was not complied with. There was no such failure in this case, in which there were clear statements that the PM would comply with the 2019 Act.
46. There was an alternative remedy available, the problem for the petitioners being that it had been refused. That did not justify exercise of the nobile officium jurisdiction.
47.There was a practical issue as to what the European Commission would make of a letter signed by the clerk of court and not the PM.
48. At this stage it was observed by the Lord President that were any order to be granted, the letter would be signed by a higher authority than the clerk of court.
49. This was not an extraordinary case therefore the test for invoking the nobile officium jurisdiction had not been met.
Reply on behalf of petitioners
50. The alternative to extract being superseded was a fresh petition for judicial review being raised after 21 October. That did not allow enough time.
51. Having regard to the Vienna Convention, there would be no difficulty in the European Council receiving a letter signed by a suitable person.
THE COURT CONFIRMED THAT ITS DECISION WOULD BE ADVISED AT 11AM ON 9 OCTOBER 2019.