Vince and Others v Prime Minister of the United Kingdom of Great Britain and Northern Ireland
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Judgment Date | 07 October 2019 |
| Neutral Citation | [2019] CSOH 77 |
| Date | 07 October 2019 |
| Court | Court of Session (Outer House) |
| Docket Number | No 5 |
[2019] CSOH 77
Outer House
Lord Pentland
Carlton Hotel Co Ltd v Lord Advocate 1921 SC 237; 1921 1 SLT 126
McCord and ors v Prime Minister and ors [2019] NICA 49
McKenzie v Scottish Ministers 2004 SLT 1236
Murdoch v Murdoch 1973 SLT (Notes) 13
R (on the application of Webster) v Secretary of State for Exiting the European Union [2018] EWHC 1543; [2019] 1 CMLR 8; [2018] ACD 78
Toussaint v Attorney-General of St Vincent and the Grenadines [2007] UKPC 48; [2007] 1 WLR 2825; [2008] 1 All ER 1; 22 BHRC 790
Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816; [2003] 3 WLR 568; [2003] 4 All ER 97; [2003] 2 All ER (Comm) 491; [2003] HRLR 33; [2003] UKHRR 1085
Administrative law — Withdrawal of United Kingdom from European Union — Obligation on Prime Minister to seek extension under Art 50(3) of Treaty on European Union (2007/C 326/01) — Whether reasonable apprehension that Prime Minister would not seek extension — Whether order should be granted ordaining Prime Minister to seek extension — European Union (Withdrawal) (No 2) Act 2019 (cap 26), sec 1(4) — Court of Session Act 1988 (cap 36), sec 45(b)
Administrative law — Withdrawal of United Kingdom from European Union — Competency — Whether order ordaining Prime Minister to seek extension under Art 50(3) of Treaty on European Union (2007/C 326/01) could be made under sec 45(b) of Court of Session Act 1988 — Whether judicial review proceedings should have been raised — European Union (Withdrawal) (No 2) Act 2019 (cap 26), sec 1(4) — Court of Session Act 1988 (cap 36), sec 45(b)
Dale Vince OBE, Jolyon Maugham QC and Joanna Cherry QC MP brought a petition in the Outer House of the Court of Session, seeking an order under sec 45(b) of the Court of Session Act 1988 to ordain the Prime Minister of the United Kingdom of Great Britain and Northern Ireland, the Rt Hon Boris Johnson MP, to comply with his duties under sec 1(4) of the European Union (Withdrawal) (No 2) Act 2019, and interdict. The cause called before the Lord Ordinary (Pentland) for a hearing on the petition and answers, on 4 October 2019.
The European Union (Withdrawal) (No 2) Act 2019 (cap 26) (‘the 2019 Act’), sec 1(4), provides, inter alia, “The Prime Minister must seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union [(2007/C 326/01)] ending at 11.00 pm on 31 October 2019 by sending to the President of the European Council a letter in the form set out in the Schedule to this Act requesting an extension of that period to 11.00 pm on 31 January 2020 in order to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50(2) of the Treaty on European Union”.
The Court of Session Act 1988 (cap 36) (‘the 1988 Act’), sec 45, provides, inter alia, “The Court may, on application by summary petition– … (b) order the specific performance of any statutory duty, under such circumstances and penalties (including fine and imprisonment, where consistent with the enactment concerned) in the event of the order not being implemented, as the Court seem proper.”
The petitioners presented a petition seeking: an order under sec 45(b) of the 1988 Act ordaining the Prime Minister to sign and send a letter to the President of the European Council as required by sec 1(4) of the 2019 Act; and interdict against the Prime Minister from doing anything to frustrate or undermine the will of Parliament as expressed in that Act. The petitioners averred that they were reasonably apprehensive that the Prime Minister would not comply with his statutory obligations under sec 1(4), having regard to statements made in Parliament and the media that he would not request an extension. The first respondent stated in the answers to the petition that the Prime Minister would comply with sec 1(4), and submitted that there was accordingly no need for any orders to be made by the court. The respondents also submitted that the petition was incompetent and ought to have proceeded by way of petition for judicial review.
Held that: (1) the petition was competent as the petitioners had the statutory right to make an application under sec 45(b) of the 1988 Act by summary petition, which was what they had done (paras 47–51); (2) the petition was not premature as the petitioners were entitled to advance a case based on reasonable apprehension of breach of statutory duty, and it would make little sense for the petitioners to have to wait until the breach of duty had actually occurred in circumstances where a reasonable apprehension of breach could be made out (paras 52, 53); (3) the unequivocal assurances given to the court in the first respondent's answers in their note of argument, and in their oral submissions, that the Prime Minister would comply with his legal obligations under the 2019 Act meant that there was no proper basis on which the court could hold that the Prime Minister would fail to comply with his obligations, and the petitioners' case based on reasonable apprehension of breach of duty was not made out (paras 42–46); and petition refused.
Observed that: (1) the terms of the orders sought by the petitioners were not sufficiently precise and did not reflect the statutory duties imposed by the 2019 Act (paras 54–59); and (2) it was not appropriate to hold over consideration of certain heads of the prayer of petition that were not moved at the hearing, as the practice of the court was to dispose of a petition at the hearing on the petition and answers, and the remaining heads of the prayer fell to be regarded as not insisted upon (para 60).
McKenzie v Scottish Ministers 2004 SLT 1236 considered.
At advising, on 7 October 2019—
Lord Pentland—
[1] The petitioners seek various orders aimed at ensuring that the Prime Minister of the United Kingdom of Great Britain and Northern Ireland complies with the statutory duties imposed on him under the European Union (Withdrawal) (No 2) Act 2019 (cap 26) (‘the 2019 Act’), and specifically with the duties to which he is made subject by sec 1(4) thereof. The petition has been brought under Ch 14 of the Rules of the Court of Session (Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69))); it is not a petition for judicial review invoking the supervisory jurisdiction of the court. No issue was raised as to the title and interest of any of the petitioners to bring the present proceedings.
[2] The first respondent to the petition is the Prime Minister of the United Kingdom of Great Britain and Northern Ireland, the Rt Hon Boris Johnson MP. The second respondent is the Advocate General for Scotland; he has been convened, in accordance with the Crown Suits (Scotland) Act 1857 (20 & 21 Vict cap 44), as the minister of the Crown representing the Government of the United Kingdom (‘the Government’) in proceedings brought before the Scottish courts.
[3] I should note at the outset one point which can be quickly disposed of. The Advocate General has tabled a preliminary plea in his answers challenging the jurisdiction of the court over Mr Johnson as an individual on the basis that he is not personally domiciled in Scotland. At the hearing before me, on 4 October 2019, senior counsel clarified on behalf of the petitioners that the intention was not to convene the first respondent in the present proceedings as an individual, but solely in his capacity as a minister of the Crown. In view of that acceptance, the jurisdiction point falls away since it was not in dispute that the Crown is domiciled throughout the UK and, therefore, that this court has jurisdiction over the first respondent in his capacity as a minister of the Crown.
[4] The petitioners seek four substantive orders, but at the hearing senior counsel explained that he was seeking at this stage orders in terms of heads (i) and (ii) of the prayer only.
[5] Head (i) seeks interdict against the first respondent and any 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 UK Parliament as enacted in the 2019 Act, particularly (but not restricted to): (a) sending any document, message or statement alongside the letter required to be issued under sec 1(4) which suggests that the UK's intention is anything other than that set out in the letter; (b) delaying or otherwise causing the letter sent under sec 1(4) not to be received by the President of the European Council; and (c) encouraging (or causing to be encouraged) any other EU Member States either directly or indirectly to disagree with any proposed extension of the period under Art 50(3) of the Treaty on European Union (2007/C 326/01).
[6] Head (ii) seeks an order under sec 45(b) of the Court of Session Act 1988 (cap 36) ordaining the first respondent, in the event that neither of the conditions in subsec (1) or (2) of sec 1(4) of the 2019 Act has been fulfilled by 11.00 pm on 18 October 2019, to sign and send the letter referred to in subsec (4) prior to 3.00 pm on 19 October 2019, without any amendment, alteration or addition, either within the letter or in any separate letter, note, addendum or message, and to take all necessary steps to achieve the extension of the period under Art 50(3) of the Treaty on European Union due to end at 11.00 pm on 31 October 2019.
[7] The other orders craved in the petition are, in short, for interdict against the respondents from...
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