OUTER HOUSE, COURT OF SESSION
OPINION OF LORD PENTLAND
In the Petition of
JOLYON MAUGHAM Petitioner
“In my opinion, the petitioner does not have a prima facie case. In the first place, the petition is of very doubtful competency. The orders sought would unquestionably interfere to a major extent with the proposed proceedings in Parliament. Suspension of the draft withdrawal agreement would mean that the motion for its approval could not realistically or properly go ahead as planned. I cannot see that it would be right for Parliament to be invited to consider a draft treaty which the court had suspended on the basis that it was unlawful. It is a cardinal principle of constitutional law that the courts should not intrude on the legitimate affairs and processes of Parliament. I consider that it should be left to Parliament to proceed in relation to the draft withdrawal agreement in the manner and according to the procedures that Parliament considers most appropriate in the circumstances.
“Secondly, I consider that the petitioner’s legal argument as to the incompatibility of the draft withdrawal agreement with section 55 of the 2018 Act is at best a weak one.
“Thirdly, the balance of convenience, in my view, strongly points towards it being right for the court to decline to grant the interim orders sought.
“Fourthly, the petitioner’s approach fails to take account of the fact that the withdrawal agreement is at present still at the stage of being merely a draft instrument. It requires to be ratified, both at UK and EU levels. These procedures should be allowed to be followed through in line with the appropriate processes in the UK Parliament and elsewhere. It would be quite wrong and contrary to basic constitutional principles for the court to interfere with them in the way that the petitioner has proposed.
“For all these reasons, I conclude that the petitioner’s applications for interim orders are misconceived and unjustified. They have no or at best a weak prima facie case. The balance of convenience comes down firmly on the side of refusing to make the orders. I shall accordingly refuse the petitioner’s motion insofar as it seeks interim orders”.
Mr Maugham appears to have raised funding of circa £98,000 for the case. Happily none of it was mine!