The 128 chilling words in the Scottish case

8th October 2019

At paragraph 43 of the Scottish court judgment this blog discussed yesterday is this passage:

“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.”

These 128 words are chilling for the UK government

What the judge has done is to make it that if the government breaks these averments then it will be a serious professional matter for Lord Keen, the Advocate General and the UK government’s chief law officer for Scotland, and it will also have severe other legal consequences – as if the government had broken an undertaking or a court order.

(The Advocate General is the Scottish counterpart to the Attorney-General in the jurisdiction of England and Wales.)

Put succinctly: if the government breaks the averments then Lord Keen could be thrown out of the profession, and the government would itself face sanctions.

Lord Keen is now obliged to ensure the UK government keeps its promises to the court.

And here it is significant that the judge is Lord Pentland.

He is himself a former Scottish law officer, as Solicitor-General for Scotland in the Major Conservative government.

As a former law officer, Lord Pentland knew exactly what professional button to press and, although the UK government did not give a formal undertaking, the averments have been taken to be just as firm – and just as consequential if breached.

The averments that the government will comply with the Benn Act, and (as importantly) will do nothing to frustrate the Benn Act, are serious words with serious consequences.

The case is being appealed – and it may be the appeal judges impose an order out of prudence.

And some Brexiters may welcome an order, as something to blame.

But what Lord Pentland has done is avoid an order and instead made Boris Johnson’s promises matter just as much as if an order was made.

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23 thoughts on “The 128 chilling words in the Scottish case”

  1. Fine, but don’t you ignore the differing views of the extent of the ‘frustration principle’, now made explicit in the memo in the Spectator? The Gov has accepted it will send the letter in accordance with the Benn Act and that it will not frustrate the sending of the letter. But it is wrong to see this as accepting the Gov will not bend over backwards to frustrate the acceptance of the request in the letter. So the Gov is saying it will send a letter but can at the same time make clear to the recipients that it does not mean what it says in the letter. Why was this gap not plugged in the Scottish claim or further legislation?

      1. I sure hope you are right! But wasn’t the same (and worse) said about the threat of a lengthy prorogation?

      2. Mr Cummings and his strategy is full of bombast and bluster.

        But somehow or other he successfully got the majority of referendum voters to go for ‘Leave’.

        Can his approach so easily be discounted?

    1. I agree with your summary. The foreign affairs prerogative is exercised by the government not parliament. The fact that parliament require an extension (for some unknown reason) doesn’t preclude the government stating how it will exercise the prerogative during any extension, even stating that it believes such an extension to be a waste of time.

  2. Would Johnson & Cummins not be very happy to throw Lord Keen under the bus by ignoring this court order as it would fit with their ‘the people vs. the elite’ storyline? What consequences would their be for Johnson personally?

  3. I have a feeling that the destructive tendencies of Mr Cummings will have no qualms in seeing Lord Keen thrown under the bus if necessary.

  4. Fascinating and very insightful.

    Your blog is an essential in these troubled constitutional waters.

    I wish I hadn’t slept thro most of my con.law lectures!

  5. It’s almost as if the Government were trying challenge the judiciary by alternately:
    • trying to wriggle through apparent legal loopholes in uncodified constitutional law;
    • double-daring them by trying to force any judgement or remedy into ‘controversial’ territory;
    • trying to start a brawl which would win cheers from the cult of their supporters even if they lose.

    It’s almost as if the judiciary know the legal terrain better than the Government and consistently outwit them without breaking sweat, or even breathing harder than usual.

    It’s fighteningly [typo, but I’ll leave it!] consistent with their thoroughly ignorant and incompetent approach to negotiating with the EU, to be frank. It’s another of those occasions when you may even find yourself hoping that, no matter how nasty it may be, there must be something more devious going on in secret! Surely it really can’t be this bad, can it?

    And then you see them threatening MSs over security cooperation … \Ö/

  6. I share the concerns of others that the while the govt will ask for an extension , they will not offer the EU any substantive reason (eg a general election etc) for granting it. They do not even have to go so far as to actively frustrate the legislation by arguing against an extension.

    1. But won’t the EU27 decide on whether to grant the extension based on their perception of what Parliament, as well as the Government, is saying? They might very well grant an extension in the hope that the result would be that they get a different Government to negotiate with — one less malicious and incompetent.

  7. Hmmm. Isn’t the leak threatening EU states that delay Brexit, exactly a breach of the requirements laid out in the Scottish High Court? The finger of suspicion is being pointed at Cummings as the author and source of the leak. Who will take action against HMG when it is HMG that is breaking its word?

    1. Perhaps I’m missing something, but the Benn Act requires the seeking of an extension if a deal is not reached by October 19th. Since it is not October 19th, the government can do whatever it wants to frustrate an extension before then. The government could argue that the leak, or perhaps even some letter sent before October 19th opposing an extension, is to give itself the best possible chance of getting a deal (the purpose of the extension in the first place is claimed to be avoiding no deal, not avoiding a deal). I think we can expect a lot of bluster before October 19th, after which point such acts would be considered contrary to the law.

  8. Illuminating as ever… And there was silly old me thingking that the UK Government had been quite clever in making Solomon Binding undertakings to the court, precisely to avoid a formal order being made.

    But Lord Pentand has been more cunning still, it seems. That’s encouraging…

  9. In times of stress, people always go back to their core activity, the one they feel most comfortable with. For politicians with a legal background, they head for the courts. When they get a judge to agree with them, they think they’ve won. But ultimately this is politics, not law, and the aim of Cummings/Johnson is political not legal, in that it is simply about winning the next election. So far, that is looking good. The poll numbers all look promising, subject to the usual proviso’s of the predictive power of polls.

    If you win in court without winning the political argument, then it eventually it will turn out to be a pyrrhic victory.

    1. Politics, outside the proper framework of the laws that society sets for itself, leads to anarchy or dictatorship. Politicians that believe they are above the laws of society become despots and dictators with no legitimacy. Such people have no place in British political life and may well end up with a profound knowledge of the prison system!

      1. I completely agree, which is why the behaviour of people like Starmer, Grieve, and others is so destructive. They have captured the law and done this without a mandate. They have broken promises they made to their electors who look on in horror and fury at the way their votes count for nothing. For Lady Hale to lead the Supreme Court in joining them in this enterprise is highly dangerous for the law.

        It’s a strange world where the man who wants an election so he can get a mandate is regarded as a despot and a dictator, and those who have broken their promises to the electorate and now refuse to submit to an election are regarded as democrats.

  10. One would expect that Lord Pentland is himself too skilled to take the bait of anybody “throwing Lord Keen under the bus…”. As I suggested before, the view of a Court in such circumstances might (and should) be that the acts constitute criminal contempt of the Court on the part of those who authorized the giving and confirming of the averments.

    An Order might made immediately by Lord Pentland that the PM and Lord Keen shall both appear in person before the Court at 10 o’clock the next day to explain their conduct and possibly to purge their contempt. That might concentrate some minds. The prospect of “… a hanging at dawn doth concentrate the mind.”, even of an Old Etonians.

  11. can’t he just post a letter, second class, from some remote Scottish island, where the post box is only emptied once a week…

  12. Does it work both ways?

    Can the public take Parliament to court for frustrating the law… namely the 2019 Withdrawal Act, Exit Day?

    Can the public do anything to get the courts to force a General Election?

    Thanks in advance.

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