Brexit: Can a Scottish court order Boris Johnson to be imprisoned?

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If you thought the Court of Session had been totally upstaged by Lady Hale and her spider brooch last week - yes just last week - then Scotland's Lords Commissioners have some beers they'd like you to hold.

All eyes will be back on Scotland's highest court this Friday as yet another thorny question of Brexit, the constitution and parliamentary powers, is brought before the Court.

Boris Johnson's Brexit actions will be under scrutiny once again at the Court of Session this Friday.

Boris Johnson's Brexit actions will be under scrutiny once again at the Court of Session this Friday.

Yesterday Lord Pentland fixed 11am on October 4 for a hearing to take place, once again brought by SNP MSP Joanna Cherry and lawyer Jo Maugham QC - this time joined by millionaire environmental businessman Dale Vince - to have the court consider whether it can imprison the Prime Minister if he pursues a ‘no-deal’ Brexit.
The stakes are high. Mr Johnson's prorogation of Parliament was found to be unlawful but this time, if he fails to abide by the Benn Act - and write to the EU for an Article 50 extension to prevent a no-deal exit - he would be acting illegally.

Cherry, Maugham and Vince want the court to grant an interdict that would stop Boris Johnson from not complying with the terms of the Benn Act.

The legislation, which was introduced by Labour MP Hilary Benn, was passed by Parliament - just hours before it was unlawfully suspended - following claims the PM would ignore the wishes of elected politicians and deliver a no-deal Brexit.

The petitioners want the Court of Session to do two things using the power of the Nobile Officium - send the Article 50 extension letter on the Prime Minister's behalf and consider fining or even imprisoning him in the event he disregards the Benn Act - or as Mr Johnson controversially calls it "the surrender act".

Lord Pentland ruled the hearing would be heard this Friday.

Lord Pentland ruled the hearing would be heard this Friday.

How is this even possible?

You might well ask.

It turns out that the Court of Session - unlike the High Court of England - has a legal power of Nobile Officium. This is not a Harry Potter reference, but it does make the court somewhat unique (and it sounds sounds rather snappier in Latin than it does in English).

According to the man who wrote the book on the subject, Stephen Thomson, the Nobile Officium is used in two distinct ways: when there is no legal rule which adequately covers a given situation and when there is a legal rule governing a situation, but its application would be unduly excessive, oppressive or burdensome.

All eyes will be back on Scotland's highest court this Friday as yet another thorny question of Brexit, the constitution and parliamentary powers, is brought before the Court.

All eyes will be back on Scotland's highest court this Friday as yet another thorny question of Brexit, the constitution and parliamentary powers, is brought before the Court.

The Court then uses the Nobile Officium to grant a remedy or make any order.

Without doubt, there is no legal precedent for a Court having to decide what to do in the event of the Prime Minister refusing to carry out the actions of the House of Commons as made clear in the Benn Act.

Has it been used before?

Does Lord Pentland sport a natty moustache? (Yes he does in case you were wondering)

Scotland's Court of Session will be asked to send an Article 50 extension letter if the Prime Minister refuses - and decide if he should be fined or imprisoned for failing to comply with the Benn Act.

Scotland's Court of Session will be asked to send an Article 50 extension letter if the Prime Minister refuses - and decide if he should be fined or imprisoned for failing to comply with the Benn Act.

Historically, it has been used in the Court of Session in relation to trusts, judicial factors, bankruptcy and sequestration, while in the High Court, it has been invoked to address situations of incompetency, unlawfulness, irregularity and bias in criminal proceedings, excessive and oppressive sentences, errors and other procedural issues. It can, and has, also been used to challenge findings of contempt of court.

But, given the extraordinary nature of the power, it is used with caution and the circumstances have to be pretty exact for it to apply.

First, there should be some "exceptional or unforeseen circumstances requiring redress".

Second, there should be a sense of urgency, injustice or need justifying an extraordinary response from the court.

Third, the petitioners should generally not request something that contravenes statutory intention, ie, they shouldn't ask for something which goes against the letter and spirit of what is stated in statute.

And fourth, there should be no other remedy available to the petitioner.

You can see what the Cherry and Co are fairly confident that Brexit and the potential breaking of the Benn Act, might tick all those boxes.

What do the petitioners' papers say?

The papers lodged at the Court state: “To interdict the Prime Minister and any other minister of the Crown in right of the United Kingdom and anybody acting on their behalf or at their request from withdrawing, cancelling or otherwise undermining the effect of any letter sent in accordance with section 1 (4) for the European Union (Withdrawal) (No.2) Act 2019;

“In the event that the Prime Minister fails, delays or refuses to sign the letter required of him by the European Union (Withdrawal) (No.2)) Act 2019 and in accordance with this court’s order for the specific performance of the Prime Minister’s statutory duties to make orders to the following effect in the exercise of this court’s nobile officium; a) ordaining that a letter in the form set out in the schedule to the European Union (Withdrawal) Act 2019 to be drawn up and signed by the clerk of court on behalf of the Prime Minister b) ordaining that a letter so signed be sent to the President of the European Council.

“To impose such other conditions and other penalties including fine and imprisonment, where consistent with the European Union (Withdrawal) no.2 Act 2019 as to the court shall in all the circumstances seem proper and appropriate in the event of the order not being implemented.”

What happens next?

Well everyone will be back at the Inner House of the Court of Session on Friday morning, even though the government's lawyer Ruth Crawford QC told the court the action contained issues of "legal and constitutional" importance and so they needed more time to prepare their responses.

Aidan O’Neill QC, fresh from his success in the Supreme Court is acting for the petitioners again.

If the Court decides it can use the Nobile Officium it would be hugely controversial - and would come at a time when some in Downing Street have already suggested that Scottish judges are biased after they found against Johnson and the prorogation of Parliament. A court intervening in the actions of the Prime Minister in this way will cause a furore, and the there will be heightened awareness of that in legal corridors.

But the Court of Session has proved itself not to be cowed by controversy, and with no precedent to guide Lord Pentland, in the words of singer Ellie Goulding, anything could happen.

It is also not yet known what type of jewellery, if any, will be worn.