The Nobile Officium Cases – the way forward
Dale Vince OBE, Joanna Cherry QC MP and Jolyon Maugham QC filed two cases in relation to the Prime Minister’s obligations under the so-called Benn Act.
The first case was commenced in the Outer House of the Court of Session for orders obliging the Prime Minister to comply with his duties under the Benn Act (a) to send a letter asking for an extension and (b) not to frustrate the Act by e.g. asking other Member States to veto the UK’s request for an extension.
On Monday the Outer House said that Boris Johnson:
“is subject to the obligations of the [Benn] Act; (b) in the event of neither of the conditions in section 1(1) or (2) being satisfied, the first respondent will comply with section 1(4) no later than 19 October 2019; and (c) that he will not frustrate the purpose of the [Benn] Act or the purpose of any of its provisions. In other words, there can be no doubt that the first respondent now accepts that he must comply with the requirements of the [Benn] Act and has affirmed that he intends to do so.”
If Boris Johnson adheres to these statements the entire purpose of the litigation – that a man elected from 160,000 members of the Conservative Party should comply with a law enacted by 46 million voters – will be satisfied.
The second case was commenced in the Inner House asking the Court, if the Prime Minister (a) fails to send (as required by section 1 of the Benn Act) the letter asking for an extension or (b) fails to agree an extension offered by the EU (as required by section 3 of the Benn Act), to complete those acts itself.
And earlier this morning the Inner House held the cases over to 21 October – the first working day after the Prime Minister’s obligation to send the Benn Act letter expires. So if the facts do require it, it can make appropriate orders against the Prime Minister.
What would happen if the Prime Minister were to act inconsistently with his statements to the Court?
This is a state of affairs which seems to us to be highly likely. Only last night, for example, the President of the European Parliament stated that Boris Johnson had told him he would not be asking for an extension. If Boris Johnson was telling the truth, this would be a breach of his obligations to send the letter under the Benn Act. And if Boris Johnson was not telling the truth, this would, it seems to us, be a breach of his obligations not to frustrate the Benn Act.
The ability of the Inner House to exercise its nobile officium – and sign the letter or acceptance of an offer of an extension – provides a remedy in relation to documents the Prime Minister unlawfully fails to execute. But it will only be engaged if the Prime Minister has already breached his obligations under the Benn Act. If, in other words, he has already failed to adhere to statements made to the Court.
Good Law Project, on its own account, is currently in the process of instructing leading Counsel specialising in civil contempt proceedings and does intend, if so advised, to institute contempt proceedings against the Prime Minister in respect of such failings.
No one is above the law.
Jolyon Maugham said:
“These cases are about keeping the Prime Minister on the straight and narrow. We have extracted from him a promise that he will comply with the law. If he breaks that promise he will face the music – including possible contempt proceedings. And the Courts are likely to make good any failure on his part, including signing the Benn Act letter.”