The Edinburgh-based Court of Session held that it was unnecessary to grant the “coercive orders” sought due to the “unequivocal assurances” given by the UK Government in its pleadings that the PM will comply with the European Union (Withdrawal) (No. 2) 2019 - the so-called “Benn Act”, our sister publication Scottish Legal News reports.

Lord Pentland heard that the petitioners, businessman Dale Vince, barrister Jolyon Maugham QC and Joanna Cherry QC MP, lodged a petition against Prime Minister Boris Johnson and the Advocate General for Scotland Lord Keen of Elie QC under chapter 14 of the Rules of the Court of Session seeking certain orders aimed at ensuring that Mr Johnson complies with the statutory duties imposed on him by the 2019 Act - the underlying purpose of which is to ensure that the UK does not leave the EU on 31 October 2019 without a withdrawal agreement.

The petitioners were seeking interdict against the first respondent and any minister of the Crown from taking any action that would undermine or frustrate the will of the UK Parliament as enacted in the 2019 Act, particularly sending any document, message or statement alongside the letter to be issued under section 1(4) of the 2019 Act which suggests that the UK’s intention is anything other than that set out in the letter.

The petitioners also sought an order under section 45 of the Court of Session Act 1988 ordaining the first respondent, in the event that neither of the conditions set out in subsection (1) or (2) of section 1 of the 2019 Act has been fulfilled by 11pm on 18 October 2019, to sign and send the letter referred to in subsection (4) prior to 3pm on 19 October 2019, without any amendment, alteration or addition, and to take all necessary steps to achieve the extension of the period under Article 50(3) of the Treaty of the European Union.

The other orders craved were for interdict against the respondents from withdrawing the letter of request and for the imposition of penalties in the event the court’s orders were not complied with.

‘Reasonable apprehension’

The petitioners relied on various statements made by or on behalf of the Prime Minister in Parliament, in speeches outside Parliament, and to the media, in which his stated position was that the UK would leave on 31 October with or without a deal, and that he would not request an extension.

The petitioners’ position was that the clear implication from the words of the Prime Minister and other ministers of the Crown was that the Government intended to act “unlawfully” by refusing to carry out a statutory obligation imposed on the Prime Minister by section 1 of the 2019 Act.

The petitioners argued that as a result of the statements made by the Prime Minister and other ministers, they had a “reasonable apprehension” that the Prime Minister intended to act unlawfully.

Therefore, according to the petitioners, the court should intervene by granting “coercive orders” so as to secure compliance with the law.

The petitioners acknowledged that the Prime Minister had also stated - before the raising of the present proceedings - that he would comply with the law, but they maintained that a general assurance was not, in the circumstances, sufficient to displace their reasonable apprehension that he will not comply with the statutory obligations imposed by the 2019 Act on the office of Prime Minister.

On the basis of this apprehension, they claimed they were “entitled” to an order under section 45(b) of the 1988 Act and to an order for interdict.

‘No need for coercive orders’

The petition was served on the respondents on 1 October 2019, but it was only answers for the Advocate General for Scotland were lodged on 3 October that the Prime Minister’s and the Government’s position in law in response to the case advanced in the petition was capable of being fully appreciated.

The answers lodged on behalf of the Advocate General stated that the Prime Minister “accepted” that in the event that neither of the conditions set out in section 1(1) and (2) of the 2019 Act is satisfied, he will send a letter in the form set out in the schedule by no later than 19 October 2019.

The answers also stated that he was subject to the “public law principle” that he “cannot frustrate its purpose” or the purpose of its provisions - thus he “cannot act so as to prevent the letter requesting the specified extension in the Act from being sent.”

But on behalf of the petitioners Aidan O’Neill QC submitted that in view of the earlier statements to contrary effect, the court should attach “no weight” to the averments in the answers as they were “inconsistent” with what the first respondent and other members of the government had said on many earlier occasions.

Moreover, the respondents had offered no undertakings to the court that they would do what was set out in the averments; nor had they tendered any affidavit evidence, and thus the court should exercise its discretion in favour of granting the orders sought.

However, on behalf of the respondents Andrew Webster QC argued that the Prime Minister and the UK Government had now made their intentions entirely clear; they would “comply fully” with all the requirements imposed on the first respondent by the 2019 Act and would “not seek to frustrate its purpose”.

Therefore, there was “no need” for the court to pronounce any order, whether for interdict or in terms of section 45(b) of the 1988 Act.

‘Unequivocal assurances’

Dismissing the petition, the judge ruled that the petitioners had failed to prove that there was a “reasonable apprehension” that the Prime Minister would not comply with his statutory duties, and therefore it was “neither necessary nor appropriate” to grant the orders sought.

In a written opinion, Lord Pentland said: “The Advocate General has set out clearly and unequivocally the Prime Minister’s intention to comply with his statutory duties under the 2019 Act. This has been done so by way of detailed and specific averments in written pleadings put before the court on the professional responsibility of those acting for the Prime Minister and the government and with the express authority of the Advocate General for Scotland; he himself is, of course, an officer of the court.

“The Prime Minister and the government having thus formulated and presented to the court their considered legal position, there is no proper basis on which the court could hold that they are nonetheless liable to fail to do what they have in effect undertaken to the court that they will do.

“It is accepted by the petitioners that what the Prime Minister has said that he will do would amount to compliance with all his statutory obligations under the 2019 Act and with his obligation not to frustrate the purpose of the legislation. I consider that acceptance to be well-founded.”

He continued: “In my opinion, the extra-judicial statements on which the petitioners rely must be understood in the political context in which they were made; that is as expressions of the government’s political policy. They were clearly not intended to be taken as conclusive statements of the government’s understanding of its legal obligations.

“If I may put the point another way, the government accepts that in executing its political policy it must comply with the 2019 Act. That being the government’s clearly stated position before the court, there is no need for coercive orders against it or against the Prime Minister to be pronounced.

“The court should not pronounce coercive orders (or decree for interdict) unless it has been established on the basis of cogent evidence that it is truly necessary for such orders to be granted. In my opinion, that has not been done in the present case.”

The judge concluded: “I would add only this. I approach matters on the basis that it would be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the Crown for the Prime Minister or the government to renege on what they have assured the court that the Prime Minister intends to do.

“Having regard to the Prime Minister’s and the government’s unequivocal assurances before the court in the pleadings, in the note of argument and in oral submissions that they will comply with the 2019 Act, I am not persuaded that it is necessary for the court to grant the orders sought or any variant of them. I am not satisfied that the petitioners have made out their case based on reasonable apprehension of breach of statutory duty on the part of the Prime Minister.”