Maugham v Advocate General for Scotland is the latest in a long line of Brexit related litigation that has been ongoing in the Scottish courts (as well as courts elsewhere in the UK). Lord Pentland was today considering a motion in the Petition by Jolyon Maugham QC for interim suspension and interdict. In particular, the Petitioner was seeking interim orders in terms of paragraphs (i) and (ii) of the Prayer of the Petition; which are in the following terms:

“(i) to suspend ad interim the purported agreement which is said by the United Kingdom government to have been concluded between it and the European Union and the United Kingdom government, on the basis that this agreement provides for Northern Ireland to form part of a separate customs territory to Great Britain; and

(ii) for interdict ad interim against Ministers of the Crown in right of the United Kingdom including the Prime Minster (and anybody acting on their behalf or at their request) from entering into arrangements under which Northern Ireland is to form part of a separate customs territory to Great Britain”.

Essentially, the Petitioner was asking the Court to make temporary orders pending the full consideration of the Petition. This Petition is aimed at the latest version of the Withdrawal agreement negotiated between the United Kingdom and the European Union. That Withdrawal agreement is due to be considered by Parliament tomorrow (Saturday 19^th October 2019).

Before the court can grant interim orders of this kind; it requires to be satisfied of the following: (1) that the party seeking the orders has a prima facie case (that is whether, on the face of it, does the person asking for the interim orders have a case which would entitle them to the full order); and (2) whether the balance of convenience favours making the order. If the court is satisfied as to both of these issues then it will make the interim orders sought by the party.

This morning, the Lord Ordinary (Lord Pentland) heard argument from Senior Counsel (O’Neill QC) for the Petitioner and Senior Counsel (Moynihan QC) for the Respondent (the Advocate General for Scotland – who represents the United Kingdom Government in the Scottish courts) in respect of whether these orders should be granted or not. As is usual with these sorts of matters, a decision quickly followed and the Lord Ordinary’s Opinion was published shortly after 5pm this evening. Lord Pentland refused the interim orders sought by the Petitioner and made the usual orders for advertisement, intimation and Answers.

In refusing the motion for interim orders, the Lord Ordinary questioned the competency of the Petition, noting that “[t]he orders sought would unquestionably interfere to a major extent with the proposed proceedings in Parliament” [22]. Proceedings in Parliament are subject of privilege and cannot be challenged or interfered with by a court. This will be a significant issue that the Petitioner will have to overcome if he continues with his Petition (although, given that Parliament will now debate and likely vote on the new Withdrawal Agreement tomorrow; quite what proceeding with the Petition would achieve is not overtly clear).

The Petitioner’s case appears to be based on the premise that the latest version of the Withdrawal Agreement negotiated between the UK and the EU would breach section 55 of the Taxation (Cross-Border Trade) Act 2018. The Petitioner’s case here was that section 55 of the Taxation (Cross-Border Trade) Act 2018 (“the 2018 Act”) constrained how the Government could exercise its prerogative powers in respect of foreign affairs. Senior Counsel for the Petitioner argued that “section 55 was a prohibition specifically directed to what the United Kingdom Government can or cannot do in this area. In particular(…) the section does not allow the Government even to propose for ratification by the UK Parliament any arrangement allowing for Northern Ireland to form part of a separate customs territory to Great Britain as this would involve the United Kingdom Government impermissibly having entered into an arrangement with another party to allow for such a result.” The Lord Ordinary described this part of the Petitioner’s case as being, at best, a weak argument [23].

In my view, for what is worth, even if the Petition manages to overcome the significant hurdle of its apparent incompetent nature, the section 55 argument itself is one that is unlikely to find favour with the court. Parliament is supreme and Parliament may change the law. If section 55 of the 2018 Act presents a difficulty with the envisaged withdrawal agreement then Parliament may amend or repeal section 55 of the 2018 Act so as not to cause any difficulty. In any event, there is a principle in statutory interpretation known as “implied repeal”; that is, where a later statutory provision is in conflict with an earlier statutory provision, the later provision takes precedence and the earlier one is impliedly repealed. There are some exceptions to this, for example, in relation to what have been termed “constitutional statutes” where the courts have held there would have to be an express repeal. Whether section 55 of the 2018 would fall into that category is, in my view, doubtful and as such the principle of implied repeal would likely apply.

For those reasons, the Lord Ordinary determined that the Petitioner had not presented a prima facie case.

In terms of the balance of convenience, the Lord Ordinary found that it was stringly against the court granting the interim orders sought by the Petitioner. As such, the Petitioner was unsuccessful in his motion; however, this is not the end of the Petition. Today’s hearing was not a full hearing on the merits of the Petition. The Petition is still live; the court has made the usual orders for intimation, advertisement and Answers. This means that the Advocate General will now have the opportunity to lodge Answers to the Petition.

This Petition, although for Suspension and Interdict, is an application to the supervisory jurisdiction of the Court of Session; in other words, it appears to be a Petition for Judicial Review which seeks suspension and interdict as the remedies (see, for example, statement 2 of the Petition which states clearly that the purpose of the Petition is to “ensure that Ministers of the Crown in right of the United Kingdom do not breach their public law obligations laid down in statute”). Therefore, it will have to come before a Lord Ordinary to determine whether permission should be given for the Petition to proceed after Answers are lodged; this is governed by section 27B of the Court of Session Act 1988. It is a low hurdle that has to be crossed in order to secure the court’s permission to proceed: the court only has to be persuaded that there is some prospect of success which is more than fanciful; there doesn’t need to be a probability of success. The permission test is designed to eliminate fanciful claims, but not necessarily to prevent weak claims from progressing to a full hearing of their merits.

This is, in my view, a case that will almost certainly fail to clear the low hurdle that it needs to proceed beyond the permission stage. It seems to be a fanciful claim with no real prospect of success.  The section 55 argument is, as the Lord Ordinary has identified, a weak one (placing it at its highest). However, there is the more fundamental question of competence. It seems to me that the Petition is trespassing into matters covered by parliamentary privilege. However, I may well be wrong on the permission question and we will have to wait and see what happens when matters reach that stage.