, 74 tweets, 11 min read
It’s #NobOff day! Aka the Nobile Officium of the Court of Session - extraordinary jurisdiction that petitioners want to apply to sending Brexit extension letter if Boris Johnson doesn’t. Case expected all day.
3 judges enter (Drummond Young, Menzies, Turnbull). Court commenced. Aidan O’Neill QC rises for the petitioners - begins on issue of appeal to Lord Pentland’s decision in the Outer House of the Court of Session yesterday.
O’Neill pinpoints the issue of ‘undertakings’ (promises) made by the UKGovernment lawyers to the Court that the letter to extend Brexit would be sent, as the key issue for an appeal.
Counsel for respondents do not object to today’s hearing acting as an appeal to Lord Pentland’s decision, alongside the issue of power to send the extension letter. Court agrees to move forward on this basis.
Aidan O’Neill brings forward an article in The Spectator today, which quotes Downing Street on the issue of frustrating the Benn Act. [idea being this evidences bad faith on part of Government & Boris Johnson (BJ)]
O’Neill turns to challenges of establishing the jurisdiction of the court & competency of the action. Both challenged by UKGov. O’Neill reasserts point that for legal purposes BJ is domiciled in Scotland as Gov Minister.
O’Neill: While action is to enforce ministerial duties, personal liability would like with BJ as an individual. Mentions potential Court action of contempt if individual wilfully commits unlawful acts.
O’Neill: Boris Johnson is carrying out a course of conduct showing blatant disregard to following the law. Claims Lord Pentland’s analysis that this was just ‘political talk’ was wrong - these statements are of BJ’s legal plans.
O’Neill turns to the headline-grabbing admission that Boris Johnson will abide by the requirements of the Benn Act - & not seek to frustrate that requirement with other acts (public law principle).
Crucially, those statements of law by Gov Counsel were crucial in Lord Pentland’s judgment. They were taken as a serious pledge in the name of the Advocate General for Scotland - & reputation of UKGov law officers in Scots courts hangs on whether BJ does in fact follow Benn Act.
O’Neill: View of petitioners is that it remains unclear that BJ has promised to follow the law & send the Brexit letter. He invites judges to clarify this.
O’Neill: court pledges by the Advocate General for Scotland legally bind all ministers, including Boris Johnson, on our reading of the law. Asks court to reaffirm this.
O’Neill: There is clear briefing from Number 10 Downing Street that their promise to this court is not fully binding on the Prime Minister. Are these just political statements? Why do they continue after telling this court the opposite? They are repudiating their promises.
O’Neill: systematic and repeated form of briefings that they’ll continue to push a No Deal Brexit & undermine + sabotage the Benn Act demonstrate that UK Government is not planning to uphold their apparent ‘undertakings’ to this court.
O’Neill quotes newspaper reports that Boris Johnson would ‘squat’ in Downing Street & even resist being found in contempt of court. Quotes Telegraph: several Gov sources that BJ is planning to evade Benn Act.
O’Neill quotes Telegraph from yesterday on willingness of BJ team to evade the Benn Act. ‘These are not idle threats.’
Judge rightfully asks about what weight to put on press report.
O’Neill says we can’t divide what is said in court & what is said about the court.
O’Neill continuing to quote media at length. Includes Number 10 source describing Westminster Parliament as “as popular as the Clap” (Gonorrhea - something few court observers likely expected to come up today...)
Questions respondents would likely have for this line of argument:
- advisors are not the Prime Minister
- media reports can be wrong
- political threats not the same as lawbreaking.
Reasons why petitioners face tough challenge pre-Oct 19.
O’Neill continues: “This is politics being used to undermine the rule of law.” Says it’s like Boris Johnson is “leading his band of outlaws” in a Trumpian strategy for power.
O’Neill, paraphrasing Michelle Obama, says: “When they go low, this Court goes high.” Ie. By granting the Nobile Officium request to uphold the rule of law & the constitution.
O’Neill: Court has power to make order to send the article 50 extension letter. O’Neill asks for this order to made - but suspended until October 21, giving the Government opportunity to fulfil its legal obligation under the Benn Act.
O’Neill here has opened the door to some judicial flexibility on how an order sending the letter could be made. Petitioner @JolyonMaugham speculated judgment may even be suspended until around the legal deadline on October 19.
O’Neill turns to the Nobile Officium jurisdiction. Lord President Carloway raises question on why this case was brought straight to the Inner House. He says standard in conveyancing is Outer House then Inner House. O’Neill admits authority here is unclear.
O’Neill turns to claim that duty of signing the letter in law is placed on the Prime Minister - not this court. But, he says, clearly in extraordinary circumstances Corr should intervene.
O’Neill: Boris Johnson is continuing his behaviour as a journalist - exaggerating, repeating lies. These flaws are the reason why Court may have to step in to carry out the will of Parliament.
UKGov say signing the letter is a foreign policy matter under prorogative powers.
O’Neill: prorogative is subject to legal review. (Applies Miller & Cherry judgments) Is therefore possible for court action to act in area of prorogative powers.
O’Neill: The Miller case was right. In matters of EU the prorogative power cannot be relied upon when the action impacts individual rights. He says No Deal Brexit would have “catastrophic” impact on individual rights.
O’Neill on firmer ground here. Points out this isn’t even a foreign affairs matter - petitioners seeking to enforce an act of Parliament, which happens to limit the foreign affairs powers of the executive.
O’Neill: The Benn Act is very specific & detailed. It sets out when to send a letter. It writes out what the letter should say. It states how the Gov must respond to any response. UKGov claim that this is ‘unclear’ is incorrect.
Judge asks O’Neill - isn’t the uncertainty over how the European Council would respond to a letter send by the Clerk of the Court of Session. O’Neill claims EU would be unlikely to question Scots Law’s position within UK Constitution.
O’Neill adds any uncertainty over a letter sent by the court may cause any amendment actions to be taken - for instance by Speaker John Bercow - to ensure that a valid letter is sent & accepted.
UKGov states this action is incompetent as legal deadline is Oct 19 - & so no law has been broken or frustrated.
O’Neill says this is opportunity for court to suspend decree to send the letter on behalf of the court until after 19 October.
O’Neill describes attempt to claim parliamentary privilege by the respondents in relation to ministerial statements as a ‘dead horse that is repeatedly flogged’. Basically, he doesn’t think it’s a very good argument...
O’Neill explains history of Nobile Officium - deriving from the Scottish Privy Council. It’s an extraordinary jurisdiction to provide practical remedy - to act in event BJ fails to apply.
O’Neill quotes Stephen Thomson (Edinburgh Uni PhD on Nobile Officium) on the jurisdictions application - including the ‘substituted authority to subscribe’. Basically, court signing something when it is not possible for the nominally correct person to sign a document.
Thomson quoted at length as supporting academic authority. O’Neill says the Thomson analysis is directly applicable to the circumstances of Boris Johnson failing to or refusing to sign the letter required by the Benn Act.
O’Neill: “This Court has exercised the Nobile Officium in parallel circumstances.” Though notes, however, that this extraordinary case does not need parallel case law.
O’Neill: There is: a) urgency (the ticking deadline clock), b) signs of a willingness to evade, c) an order that would provide an effective remedy (court sending the letter).
O’Neill cites Mackay v Campbell [sp?] of a suspended Nobile Officium order to sign a relevant disposition. Says this precedent can be followed in this case - court wouldn’t have to until it was clear Boris Johnson had acted unlawfully.
Court breaks for 20 minutes. An FYI correction: it’s justices Carloway, Brodie, & Drummond Young. O’Neill submissions to continue from 11.35.
Enough time to visit Henry Dundas statuts, 1st Viscount Melvillle. Not my favourite. Impeached for misappropriation. Opponent of slavery abolition & Scotland’s first movement for democracy in 1790s. Would recommend looking up Thomas Muir of Huntershill...
Andrew Webster QC begins case for respondents, Advocate General for Scotland - law officer for UK Government in Scotland.
Webster to run through 5 grounds of appeal from Lord Pentland decision. Begins with reasonable apprehension of petitioners that law will not be followed by Johnson. Says Pentland weighed these claims proportionately, & did not conclude in favour of petitioners.
Webster: Lord Ordinary concluded that many statements were political. It’s legitimate for government to have a policy that is inconsistent with the pre-existing arrangement: “that is what government does”. Benn Act was not the government’s. Doesn’t mean it won’t comply with it.
Webster: The policy of the UK Government is to carry out the specific requirements of the Benn Act - no more, no less. Essentially, making other political statements are permissible & non-unlawful.
Webster points to wider context of Government statements - support for a Deal, openness to Parliament voting for No Deal, & maintaining a policy to leave on Oct 31st in its negotiating stance.
Webster: It is the right of government to keep confidential its plans of how to deliver its policy to comply with the Act & Leave on October 31st as policy, while behaving lawfully.
Webster: Courts should be very careful not to force itself on political matters in ‘very sensitive times’ during pivotal negotiations.
Webster: Express & clear statement has been made by UK Government in this case - in duty of candour & in response to petitioners’ apprehension. [The statement that Boris Johnson would send the letter].
Webster: “Statement made in the pleadings does carry significant weight...it’s a statement that the court can rely on. It’s made by a minister of the Crown & officer of the Court.” “Significant & overwhelming weight” compared to petitioners’ sources.
Webster: Some statements cited by petitioners are not by the Prime Minister, some predate the Benn Act. What weight can be taken from these?
Webster edges away from parliamentary privilege argument in full - except to challenge claim this is irrelevant.
Webster: There are equally statements to Parliament by the Prime Minister & ministers that they will abide by the law. “Totality of the picture is somewhat different to that which is painted by the petitioners.”
Webster’s main argument is that the UK Government will follow the Benn Act & the Prime Minister will send the required letter - as lawyers have promised. This being the facts of the matter, there is no prospect of lawbreaking & no cause for court to intervene.
Webster claims it is not proper for petitioners to bring new articles for the appeal (recent press reports). Webster, nonetheless, dismisses the briefings referenced by petitioners as unattributed, not government policy, & so not relevant to the case.
Webster asks Inner House to follow paras 42-46 of Lord Pentland judgment, that the statements relied on by petitioners cannot be considered substantial enough to out weight the pledges made by government law officers.
Webster turns to issue of justiciability of prorogative (para 23 of Pentland judgment). Says Miller case does not apply to this case as deal negotiations do not impact individual rights (just as May’s deal did not impact legal rights in practice).
Webster: Benn Act recognises need for negotiating space until Oct 19, within which Government can take actions including with its prorogative powers of international treaty making.
Webster dismisses petitioners’ grounds of appeal on domicile & urgency of remedies. These appear to be rather ancillary to the substance on ‘reasonable apprehension’ on lawbreaking, IMO.
Webster: Legal landscape may well be transformed by October 31st - what would that mean for a declaration of this court to send or to have sent such an extension letter?
Lord President Carloway: there may be no grounds for this petition now, but if situation changes that would give grounds for a new petition. But to do so could undermine the effectiveness of a remedy due to lack of time. Could we not simply continue this action till after Oct 19?
Dramatic possibility suggested by Scotland’s most senior judge - that court may delay its judgment till legal position is clear after the deadline. Scotland’s court sending the letter could hang over the next contentious 11 days.
Lord Drummond Young points out that Lord Pentland’s judgment was based on government undertakings that it would follow the Benn Act. Webster agrees.
Respondents turn to the Nobile Officium (NO) aspect of the case, Mr Johnson representing. Cites Cumbria County Council case on NO. Says situation must be “unforeseen” to apply NO, which doesn’t exist here.
Johnson cote London & Clydeside case (Lord Fraser speech) regarding compulsory purchase & statutory duties. Lord Drummond Young queries this reading of Nobile Officium remedies being narrowed.
Johnson: Not proper to use Nobile Officium to alter the words & meaning of the statute (act of Parliament) to imposés remedy the statute does not contain. Statute law brings extra limitations - courts cannot simply amend them.
Johnson mentions the issue of separation of powers. Nobile Officium must be exercised carefully - in this case it would be relating to foreign affairs. Lord Drummond Young points out the Benn Act has already moved parliament’s role into that of foreign affairs.
Johnson: it’s a “sensitive time”, & court should “not disturb” the negotiations. [trying to picture Boris Johnson putting a sign on the outside of the cabinet room stating: ‘Sensitive discussions - judges do not disturb’]
Johnson: In this case there is no enforceable obligation (deadline hasn’t been reached yet) & there’s no refusal to comply (legal officers have said Government will comply with Benn Act).
Johnson, concluding, says Nobile Officium is an extraordinary jurisdiction - & the extraordinary requirements of its application have not been complied with. Call for application to be refused.
O’Neill, in short response, points out that raising this case between 21 Oct & 31 Oct would cause “massive legal uncertainty”. Would raise serious practical problems to wait until explicit non-compliance.
Some light relief. O’Neill manages to fit in a Monty Python reference- “no one expects the Spanish Inquisition” - judges go into a huddle. Court returns at 11am.
Petitioner @JolyonMaugham makes statement after hearing: says possibility decision will be to suspend any orders (decision of the court) until after October 19th deadline in Benn Act.
Essentially, petitioners are hopeful suspended Court of Session judgment could act as a ‘Scottish backstop’ to ensure the law is complied with & No Deal Brexit averted. 😇
Once again - thanks to everyone for following & sharing my live-tweets! Getting stuck into these cases has certainly been an education. ☺️👌
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