Special power of the Court of Session could force Boris Johnson to extend Article 50
A special power of the Court of Session has been brought to bear on Prime Minister Boris Johnson personally and could allow the Clerk of Court to sign in his place – forcing him to extend Article 50.
Dr Stephen Thomson, the leading authority on the nobile officium, which allows the Court of Session to make any order it considers equitable, said it can permit the Clerk of Court to sign in place of unwilling, “recalcitrant persons”.
A petition has been made to the nobile officium in fresh proceedings issued against Mr Johnson compelling him to satisfy his legal obligations under the ‘Benn Act’ and send a letter to the European Union asking for an extension to Article 50.
The case has been brought by Dave Vince OBE, the environmentalist and businessman, Jolyon Maugham QC and Joanna Cherry QC MP.
The legal proceedings follow Mr Johnson’s indications that he would not comply with the law passed by Parliament in the European Union (Withdrawal) (No. 2) Act 2019.
The petitioners wrote to Mr Johnson earlier this week asking him to give a formal undertaking to the court that he would comply with his obligation to send a letter to the European Union asking for an extension – but no such undertaking was given.
Mr Maugham said: “The Inner House of the Court of Session has a special and versatile jurisdiction – its nobile officium – which it can use to, in effect, per procurationem (ie ‘pp’) any letter that the Prime Minister refuses to send.
“The rule of law is not a thing to be grifted – not even by the Prime Minister.
Aidan O’Neill QC, for the petitioners, told the court today that his clients wanted to provide Mr Johnson seven days to lodge answers.
Lord Menzies said: “We will grant your motion.”
Dr Stephen Thomson, author of The Nobile Officium: The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland and associate professor in the School of Law, City University of Hong Kong, told Scottish Legal News that the nobile officium was used “principally where circumstances arise in which judicial intervention is necessary but where the law does not provide for those circumstances, sometimes characterised as a ‘gap’ in the law, or where the application of an existing legal provision would prove unduly onerous, burdensome or unjust”.
He added that there is precedent for it to be used in a situation where the court authorises a person – typically the Clerk of Court – to subscribe documents that are legally required to be signed, “specifically where the rightful signatory is recalcitrant or unable to sign the document” but added that the current case “is of course unprecedented”.
Dr Thomson explained that the nobile officium is not a sweeping power and that it cannot be used “arbitrarily or indiscriminately”. It is in practice “used rarely and with care and restraint”.
“The judges are well aware of its extraordinary nature. Importantly, the nobile officium is exercised at the discretion of the court and its exercise cannot be secured as of right.
“Among the various restrictions on its use, the court has generally reserved it for extraordinary or unforeseen circumstances, which may include an element of urgency or emergency.”
He added: “The nobile officium is seen as a process of last resort and there should be no other avenue of redress available to the petitioner. The primary objective is to see that justice is done in extraordinary or unforeseen circumstances, but the bar is generally set at a high level for the petitioner.”