Factual and Procedural Background
This opinion concerns two petitions related to compliance with the European Union (Withdrawal) (No 2) Act 2019 ("the 2019 Act"). The first petition was presented directly to the appellate division of the court seeking to invoke the court's equitable jurisdiction (nobile officium) to issue a series of orders, including one authorising a letter, as prescribed by the 2019 Act, to be signed by the clerk of court on behalf of the Prime Minister. The second petition, to the Outer House (first instance), sought orders requiring the Prime Minister to comply with the 2019 Act, specifically to send a letter requesting an extension if certain conditions were unmet by 19 October 2019.
It was undisputed that the Prime Minister or his office had publicly stated he would not seek an extension as required by section 1(4) of the 2019 Act if neither (a) a withdrawal agreement was approved by the House of Commons and noted by the House of Lords, nor (b) the UK withdrew from the EU without an agreement by that date.
The respondent asserted confidence that the Prime Minister would comply with his statutory duties. The original petition to the nobile officium included requests for interdicts to prevent governmental action undermining Parliament’s will and for specific performance of the Prime Minister’s duties under the 2019 Act.
The respondent challenged the petition's competency, arguing that specific performance was the appropriate remedy and should be sought in the Outer House. Subsequently, the petitioners filed a separate petition there for specific performance orders.
On 7 October 2019, the Lord Ordinary refused to grant specific performance or interdict orders, accepting the respondent’s position that the Prime Minister was under a legal obligation to comply with the 2019 Act and had affirmed his intention to do so. The Lord Ordinary found no reasonable basis to doubt compliance and viewed the Prime Minister’s prior political statements as non-binding political expressions rather than legal commitments.
The court agreed with the Lord Ordinary’s reasoning, finding no current basis for coercive orders. It noted that the situation was fluid and that if by 19 October 2019 the required conditions were unmet and the Prime Minister failed to send the letter, the petitioners could return to court to seek enforcement orders, including specific performance and potentially authorising an official to sign the letter.
The court acknowledged the limited time before the statutory deadline and the political sensitivities but emphasised that judicial intervention requires demonstrable unlawfulness, which had not yet occurred. The court decided to continue consideration of the reclaiming motion and the petition to the nobile officium until 21 October 2019, when the factual situation would be clearer.
Legal Issues Presented
- Whether the court’s equitable jurisdiction (nobile officium) can be invoked to authorise the clerk of court to sign a letter on behalf of the Prime Minister pursuant to the 2019 Act.
- Whether specific performance or interdict orders should be granted to compel the Prime Minister to comply with statutory duties under the 2019 Act.
- Whether the Prime Minister’s prior political statements create a reasonable apprehension of non-compliance warranting coercive judicial orders.
- The procedural question of the competency of the petition invoking the nobile officium versus the availability of alternative remedies in the Outer House.
Arguments of the Parties
Petitioners' Arguments
- Sought orders under the court’s equitable jurisdiction to compel the Prime Minister to comply with the 2019 Act, including authorisation for the clerk of court to sign the extension letter if the Prime Minister failed to do so.
- Requested interdicts to prevent the Government from undermining the will of Parliament expressed in the 2019 Act.
- Argued that the Prime Minister’s public statements indicated an intention not to comply, justifying court intervention.
Respondent's Arguments
- Asserted that members of the Government, including the Prime Minister, would respect the court’s declarators and comply with statutory duties under the 2019 Act.
- Contended that the petition to the nobile officium was incompetent because an alternative remedy for specific performance existed under section 45 of the Court of Session Act 1988, to be pursued in the Outer House.
- Characterised the Prime Minister’s prior statements as political expressions, not legal commitments, and denied any basis for reasonable apprehension of non-compliance.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Cherry v Advocate General [2019] SLT 1143 |
Interpretation of the European Union (Withdrawal) (No 2) Act 2019 provisions regarding conditions triggering the extension request. |
Confirmed the legal import of the 2019 Act’s conditions for extension requests as uncontested. |
| [2019] CSOH 77 (Lord Ordinary’s interlocutor) |
Assessment of necessity and appropriateness of specific performance and interdict orders to compel statutory compliance. |
Held no basis for coercive orders given respondent’s clear undertaking to comply; political statements not legally binding. |
Court's Reasoning and Analysis
The court analysed the petitions in light of the respondent’s unequivocal position that the Prime Minister would comply with the 2019 Act by the statutory deadline of 19 October 2019. It emphasised that judicial coercion requires reasonable grounds to apprehend non-compliance, typically demonstrated by prior failure to comply within the statutory timeframe.
The court accepted the Lord Ordinary’s reasoning that the Prime Minister’s extrajudicial political statements do not constitute legally enforceable undertakings and should be understood within their political context. Given the respondent’s detailed professional assurances, there was no current basis to suspect non-compliance.
The court recognised the fluidity of the situation and the possibility that circumstances might change after the statutory deadline. It noted that if the Prime Minister failed to send the required letter by 19 October 2019 without satisfying the statutory conditions, the petitioners would be entitled to return to court seeking enforcement orders, including specific performance and potentially authorising a clerk of court to sign the letter.
Balancing the need for judicial intervention against constitutional principles of mutual trust between the court and the Crown, the court declined to grant coercive relief at this stage but decided to continue consideration until 21 October 2019, when the facts would be clearer.
Holding and Implications
The court declined to grant the orders sought by the petitioners at this stage, including specific performance, interdicts, or authorisation for the clerk of court to sign the extension letter on behalf of the Prime Minister.
The decision was based on the respondent’s clear and professional assurances of compliance with the 2019 Act and the absence of any reasonable apprehension of non-compliance at the time of the hearing.
The court’s refusal to grant coercive relief does not preclude the petitioners from returning to court after 19 October 2019 if the statutory conditions remain unmet and the Prime Minister fails to send the extension letter. At that point, enforcement orders may be appropriate.
No new legal precedent was established by this decision; it affirms the principle that judicial intervention in political matters requires demonstrable unlawfulness and reasonable grounds for apprehension of non-compliance.