The Benn Act Proceedings in Scotland

The post introducing the present proceedings can be seen here. The proceedings stemmed from categorical statements made by the Prime Minister that we would be leaving the EU on 31 October come what may, statements that cannot be reconciled with his clear obligations under the Benn Act.

We (Dale Vince, myself and Joanna Cherry) asked the Court for broadly two things: first, an Order requiring the Prime Minister to comply with the Benn Act and, second, if he refused, to exercise its nobile officium jurisdiction to sign the letter that the Benn Act requires him to send.

As can be seen from the introductory post, those proceedings were issued in the Inner House of the Court of Session – Scotland’s Highest Court – as the only Court that has the nobile officium jurisdiction.

Subsequently, a question arose as to whether the right procedural course was for us first to ask the Outer House of the Court of Session (the first instance Scottish Court) which could give us the first of those two things but not the second. Rather than waste scarce time arguing about procedure, we took the view that we should also lodge proceedings before the Outer House.

Today, Friday 4th of October, we have a hearing before the Outer House of our new proceedings. On Tuesday 8th October we will have a hearing before the Inner House of our original proceedings for the Nobile Officium and, we expect, the appeal by whoever loses in the Outer House.

So that the press have them, the documents we are able to publish are:

Our petition in the Outer House

Our petition in the Inner House

My affidavit in support

Our Note of Argument in support in the Outer House.

In the Prorogation case the Inner House of the Court of Session directed the Government to publish its Note of Argument. Perhaps mindful of that fact, the Prime Minister has prepared what seems to me to be an (at times) conspicuously political Note which I anticipate it will produce to the press.

I do not intend to make any comment on Scottish legal procedure when I say that I would strongly encourage the press to seek the production of the Government’s Answers – its formal response to the court to our proceedings. They contain matters of very real political significance and, speaking not as a lawyer but as someone with an interest in good governance, it seems to me in the public interest that they be in the public domain. The content of these matters is foreshadowed at paragraph 3.11 of our Note of Argument. If any of those matters are read out in open court I presently intend to publish the parts that have been read out so that they are more broadly available.