7th October 2019
The publication today of the judgment in the Scottish case against prime minister Boris Johnson is significant.
On the face of it, the decision was a defeat for the petitioners.
Their attempt to get a formal court order against the government, so as to oblige the government to comply with the Benn Act (the so-called “Surrender Act”) in the event of a No Deal Brexit, did not succeed
It is that failure which has been in the headlines of the news reports.
But those headlines are misleading.
The government sought to defeat the petition by offering promises that it would comply with the Act.
This offer of surrender to the Surrender Act was made in court documents before the hearing.
Today that offer of surrender to the Surrender Act was accepted.
Now, as long as the other conditions for triggering the Benn Act are met, it is now impossible to see how the government can avoid compliance with the Act.
The starting point is to know that one way a party facing the prospect of a court order heads off that order is by committing to the court that an order is not needed.
This is routine litigation practice.
And that is what the UK government did in this case.
In paragraph 37 of the judgment, the government’s promises are set out:
“…averred that the Prime Minister accepts in relation to the 2019 Act:
(a) That, subject to section 1(5), in the event that neither of the conditions set out in section 1(1) and (2) is satisfied, he will send a letter in the form set out in the schedule by no later than 19 October 2019: section 1(3) and (4).
(b) That, subject to section 1(5), in the event that the European Council (“EC”) decides to agree to any extension for the period specified in the letter, he is obliged immediately to notify the President of the EC that the United Kingdom agrees to that extension: section 3(1). 12
(c) That, subject to section 1(5), in the event that the EC decides to agree to an extension until a date other than the date specified in the letter, he is obliged to notify the President of the EC within the period specified in section 3(2) that the United Kingdom agrees to that extension, this obligation being disapplied if the House of Commons has decided not to pass a motion of the kind specified in section 3(3).
(d) That he is subject to the public law principle that he cannot frustrate its purpose or the purpose of its provisions. Thus he cannot act so as to prevent the letter requesting the specified extension in the Act from being sent.”
Here (a) to (c) mean the prime minister confirms he will comply with the detailed provisions of the Benn Act, and (d) confirms he will comply with the Padfield constitutional law principle that he will not frustrate the purpose of the Act.
Paragraph 38 then sets out that these “averments” were “the first detailed public expression of the Prime Minister’s intentions with regard to the legal obligations imposed on him by the 2019 Act”.
The petitioners said this was not enough and that the government could not be trusted.
The petitioners had a point and a prudent court could grant the order sought (and perhaps on appeal the court may go that bit further).
If we now go to paragraph 41, you will see the general commitment from the government about its intention behind these averments, and this is crucial:
“…the government had now made their intentions entirely clear. They would comply fully with all the requirements imposed on the first respondent by the 2019 Act and would not seek to frustrate its purpose.”
The judge accepted the averments (at paragraph 42):
“I consider that the averments (and the intentions of the Prime Minister as set out by Mr Webster) confirm the position to be that (a) the first respondent is subject to the obligations of the 2019 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 2019 Act or the purpose of any of its provisions.
“In other words, there can be no doubt that the [prime minister] now accepts that he must comply with the requirements of the 2019 Act and has affirmed that he intends to do so.”
And then at paragraph 43:
“The Advocate General has set out clearly and unequivocally the Prime Minister’s intention to comply with his statutory duties under the 2019 Act.
“This has been done so by way of detailed and specific averments in written pleadings put before the court on the professional responsibility of those acting for the Prime Minister and the government and with the express authority of the Advocate General for Scotland; he himself is, of course, an officer of the court.
“The Prime Minister and the government having thus formulated and presented to the court their considered legal position, there is no proper basis on which the court could hold that they are nonetheless liable to fail to do what they have in effect undertaken to the court that they will do.”
The emphasis on the Advocate General’s personal and professional responsibility as an officer of the court is especially eye-catching.
In paragraph 44 the judge discusses the “political” statements which indicate the government may not be serious – but this discussion only underlines the seriousness of the formal averments to the court.
And then at paragraph 45 is this extraordinary passage:
“I would add only this. I approach matters on the basis that it would be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the Crown for the Prime Minister or the government to renege on what they have assured the court that the Prime Minister intends to do.
“As the Advocate General’s note of argument says: ‘As already noted, the Prime Minister is well aware of his duty to obey the law, including the frustration principle, and is and will continue to be advised in the usual way on any issues as to the lawfulness of his proposed actions.'”
Not only would a breach of the averments be a discourtesy to the court, the judge stated in emphatic terms that it would be destructive both of the core principle of constitutional propriety and of the core principle the mutual trust that is the bedrock of the relationship between the court and the Crown.
Serious, serious stuff.
I am not a Scots lawyer, and I do not know what the formal sanction would be for a breach of an averment.
Had the averment been placed as a formal undertaking, I understand a breach could be the basis of an order as well as a committal for imprisonment.
But a judgment in these terms makes it plain that a breach of an averment would be regarded as serious as a breach of an undertaking or indeed of an order.
The judge accepted the offer of averments – but this acceptance was in such stark terms so as to remove any wiggle room without a constitutional crisis and/or an immediate coercive order.
The case is now going to appeal, and it may be that the higher court makes the order sought – but whatever happens on appeal the government’s averments would still stand.
In view of today’s Scottish court judgment there is no plausible way the government can avoid compliance with its averments, whatever the higher courts say
British politics will now be about how soon Brexiters and political journalists realise that the prime minister is committed to complying with the Benn Act, regardless of what is said outside of court.
And one added merit of today’s decision is that there is no order for the Brexiters to point to, so as to blame the judiciary.
The promises – the averments – were made by the prime minister himself.
Boris Johnson made the promises required.
The prime minister surrendered to the Surrender Act, and today that surrender was accepted.
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