Joanna Cherry KC MP has suggested (here and in parliament), somewhat indirectly, that the nobile officium of the Court of Session might, insofar as it “exists to give remedies where there would otherwise be none”, be exercised to limit the effect of the provisions of the Safety of Rwanda (Asylum and Immigration) Bill 2023-24. Notably, she tabled an amendment to prevent the bill from affecting the power of the Court of Session as set out in Article XIX of the Treaty of Union, which preserves the authority and privileges of the Court of Session, including its inherent supervisory jurisdiction and its equitable jurisdiction, the nobile officium.

Great discussion has been afforded to the extent to which the supervisory jurisdiction of the Court of Session can limit or overturn an Act of the UK Parliament, with the debate centring mostly around the principle outlined in MacCormick v Lord Advocate in which it was observed that the doctrine of parliamentary sovereignty was a distinctly English principle which had no counterpart in Scotland. What interests me, however, is Cherry’s mention of the nobile officium of the Court of Session, and the importance which it may have in this debate. The nobile officium – affectionately referred to as the ‘nob off’ by some counsel – is the equitable jurisdiction of the Scottish Court of Session. Nowadays, the jurisdiction is rarely invoked in the civil context, save for in some very extraordinary circumstances. Apart from the odd quirky petition, it does not commonly feature in day-to-day public law proceedings.

In theory, the function of equity is to tame the law. Tasioulas’ understanding of equity is that it is designed to counterbalance the law; law and equity must be held in balance to properly ascertain justice. Such is the ancient jurist’s view of justice, reflected best in the traditional depiction of Lady Justice, who holds the scales of law and equity in balance. Tasioulas explains that equitable jurisprudence is exercised where an “adjudicator is licensed to depart from the strict application of a general legal rule in order to avoid a sufficiently grave injustice in particular cases”. It is therefore by design quite unintelligible, in that it depends upon a more metajuridical notion of justice.

But equity can be just as unintelligible in theory as it is in practice. In Scotland, there is no real limit to what can be done in the exercise of the nobile officium. The principal limitation upon the nobile officium is that it may be only be exercised where there is no other apparent remedy in law, which would exclude 99.9% of civil cases from the ambit of its jurisdiction. But in such a case where a petitioner has been wronged and no legal remedy is available, the conditions under which the equitable jurisdiction could be exercised remain undefined. That being said, the conditions under which the jurisdiction has been exercised are discernible by looking to judicial custom, but even then one can only understand its limitations by examining the circumstances in which judges have hitherto refused to exercise the jurisdiction. As Thomson argues, any limitations upon the nobile officium therefore “emanate not from parliament but the judiciary itself”. However, given that the nobile officium is not bound by precedent in any strict sense, it is also true that these limitations could also be removed by the judiciary.

In the remainder of this post, I intend to explore some of those judicially-applied limitations. Specifically, I intend to consider the circumstances in which the court has disapplied parliamentary legislation in favour of a petitioner. Through consideration of those circumstances, we might understand what utility, if any, the nobile officium could have in respect of the Rwanda Bill when it becomes law, or even in respect of any other UK legislation which might, in the opinion of the court, be inequitable to enforce against a petitioner.

The Nobile Officium and Disapplication of Statute

In his excellent book, The Nobile Officium: The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland, Thomson considers a number of situations in which courts have disapplied parliamentary legislation through its exercise of the nobile officium. He makes reference to the dictum of Lord Justice-General Emslie in Anderson v HMA 1974 SLT 239 at page 240:

the nobile officium of this court, and for that matter of the Court of Session, may never be invoked when to do so would conflict with statutory intention, express or clearly implied

The rule that the nobile officium cannot be invoked when its effect would run contrary to statutory intention is an often cited maxim in the Court of Session’s jurisprudence (e.g. Pringle, Petitioner per Lord Justice Clerk Elmsie at 332; West Lothian Council v McG per Lord Justice Clerk Gill at 425). However, as Thomson seems to suggest in his work, the inverse of this rule is also true: the nobile officium can be invoked to disapply legislation when the dispensation would not conflict with parliamentary intention. There are cases in which the Court of Session has been prepared to disapply legislation in favour of petitioners where it was apparent that statutory intention had been flouted. In McKenzie of Granville v Stewart, for example, the pursuer sought to recover debts that were owed to them pursuant to a private Act of Parliament. The defender contended, however, that the private Act of Parliament was obtained on the basis that the debts were fictitious, and accordingly the act should be disapplied in favour of the pursuer. At first, the Court of Session refused to grant decree on the basis that the Court of Session cannot override parliamentary legislation. The cause was then appealed to the House of Lords by the pursuer, where the Court of Session’s interlocutor was reversed. The House of Lords held that the fictitious nature of the debts was material, and concluded that the cause was competent before the Court of Session, citing the very maxim of the nobile officium: “for every legal wrong must have a legal remedy”. A notable aspect of this case concerns the intention of parliament; the Lord Chancellor himself later remarked that “he never would have consented to such private acts, had he ever entertained a notion that they could be used to cover fraud”. A similar issue arose in the English case of British Railways Board v Pickin, where the House of Lords actually refused to disregard a private Act of Parliament where an Act was fraudulently obtained, but of course the appellants in this case were not petitioning the Scots nobile officium for disapplication of legislation.

Some 140 years later, the court also disapplied parliamentary legislation in the case of Roberts & Roberts, Curator Bonis. In this case, there was a statutory requirement for a bankrupt person to sign a declaration in order that he be discharged in terms of section 147 of the Bankruptcy (Scotland) Act 1856. However, the sequestree had become “insane” in this case and was unable to sign the declaration. The question before the court was whether it ought to dispense with the statutory requirement altogether or whether someone else should make the declaration for him. Lord Adam explained why they chose to proceed with a dispensation:

It seems to me preferable that the declaration should be dispensed with rather than that it should be made by a person not specified by the Act, and who, in a hundred cases out of a hundred and one, would know nothing about it. I think that would be a greater and unnecessary exercise of the nobile officium, and I agree that we ought in the present circumstances to dispense with the declaration.

Thomson comments on this case, noting that we can only presume that statutory intention underpins the ratio of the judgment in this case. He notes that the real reason underpinning this disapplication of statute was, simply put, equity: “the Court exercised its nobile officium to disapply a statutory provision because it regarded it as equitable to do so. The decision as applied to the facts of the case might not be substantively controversial, but the underlying principle is quite powerful”.

A Matter of Intention?

If the court has been prepared to disapply legislation where it was satisfied that it was not the express intention of parliament to legislate to create inequitable circumstances for a petitioner, then in the modern context, it is possible that section 3 of the Human Rights Act changes the scene. Under the terms of section 3 HRA, insofar as possible, parliamentary legislation must be read so as to give effect to the convention rights. And, with reference to R v Wilkinson v. Inland Revenue Commissioners, “there is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament [would] not intend a statute to mean something which would be incompatible with those rights” (though that presumption is of course rebuttable). Separately, in terms of the decision in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, parliament is also presumed to intend to legislate in accordance with its international obligations. Therefore, if there is a presumption at common law that parliament would not intend to legislate contrary to the Convention, then might that be a basis for equitable dispensation from legislation? In a situation where the terms of legislation do not appear to convey a clear intention, then it may be arguable that the nobile officium could be exercised to disapply statutory provisions where it can be shown that parliament did not intend for legislation to have an effect on the petitioner which is incompatible with the Convention. A similar argument could be made that parliament is presumed to have legislated in accordance with certain basic constitutional principles (for example, in terms of R (ex parte Simms) v Secretary of State for the Home Department), and that therefore vaguer legislation could be disapplied where it fails to afford a petitioner certain fundamental rights at common law, or where it defies the rule of law.

All of this is, however, about the implied intention of parliament; in terms of the jurisprudence of the nobile officium, any considerations anent implied intention may well be overridden by express intention made clear by the legislation. The issue with the Rwanda Bill is that the provisions of section 3 HRA will be disapplied and, what is more, the intention of parliament looks like it will be made expressly clear in the Bill. On a pessimistic reading, therefore, it is doubtful that the equitable jurisdiction could be used to dispense someone from the Rwanda Bill’s provisions, simply because such a dispensation would run contrary an express intention of the UK Parliament. That of course depends entirely on how the legislation is ultimately framed and, of course, the circumstances of the petitioner.

On the other hand, the powers of the nobile officium are only limited by judicial self-restraint; conceivably it is always possible that a judge could decide not to follow the rules about express provisions. Indeed, Thomson has identified cases where judges have used the nobile officium to dispense with statutory provisions, even when the statute expressly provided for certain measures. For example, in the case of Macdonald, Petitioners, the nobile officium was exercised to disapply a statutory direction in respect of when a creditors’ meeting should take place, where the number of days in advance of publication of a sequestration notice had passed. The reason for this, in short, was the delayed arrival of relevant documents to a Hebridean island. Thomson observes that the decision in this case goes directly “against the letter of an express provision in the statute”. Instead, the court seems to have taken account of the petitioner’s inequitable circumstances, and granted a dispensation on the basis that parliament could not have intended for such inequitable circumstances to flow from the express statutory provision. Following the ratio of Macdonald, it could be argued that, where legislation creates a practically unforeseeable abnormality which has resulted in inequitable circumstances for a petitioner, the nobile officium could be exercised even to dispense with an express provision of legislation. Thus, the deciding factor of a petition of this nature may ultimately come down to a question that is far more jurisprudential than textual: did the UK Parliament actually intend to create circumstances which were inequitable for a petitioner, such as one where the petitioner was deprived of fundamental rights? For instance, if it was clear that, due to a petitioner’s particular circumstances, Rwanda could not be considered a “safe country”, perhaps an argument could be made that even an express provision contained in the legislation should be dispensed with, because the inequitable circumstances specific to that petitioner’s situation were not intended by parliament. Whether it would be wise to lead such an argument is a separate question, but if it were a matter of last resort, it certainly seems possible that one could seek a remedy of dispensation on this basis.

Whether the nobile officium might be of any use in respect of the Rwanda Bill or not, it is clear that the nobile officium could have an untapped utility in dealing with other challenges to UK parliamentary legislation. Use of the nobile officium in this manner is quite different than any other of the typical challenges to UK parliamentary legislation, such as interpretive declarators sought in terms of section 3 or declarations of incompatibility sought in terms of section 4 HRA. The issues caused by declarations of incompatibility are somewhat obvious, insofar as they preserve parliamentary sovereignty, but ultimately fail to provide the applicant with any meaningful legal remedy. The interpretative assistance provided by section 3 HRA presents a converse problem. Section 3 can provide a remedy to applicants, insofar as they allow the court some freedom to interpret a legislative provision to accord with the Convention and in favour of the applicant. The issue is that, unlike a declaration of incompatibility, this route of challenge arguably does limit the powers of parliament. Some, such as Professor Ekins, have gone so far as to call it “judicial law-making”, claiming that these interpretative aids enable a court to completely alter the meaning of legislation.

A dispensation from legislation, however, could emerge as the via media betwixt the challenges of sections 3 and 4 HRA. It is a means of providing a remedy to a petitioner which does not, on the face of it, impinge upon parliamentary sovereignty. The court’s function is not to consider whether the legislation should be struck down or re-interpreted in light of common law principles. Rather, its function is to grant an order, ordinarily restricted to the petitioner alone, which dispenses them from the obligations set down in statute. As a result, parliamentary legislation remains intact, but the particular petitioner is afforded a remedy in light of their particularly inequitable circumstances. Put in another way, the utility of the dispensation is that a court may be far more comfortable with being asked to grant a dispensation to one person who is suffering particularly inequitable circumstances than it would be with being asked to re-interpret legislation at common law, to the point that the court teeters upon the territory of judicial review or, as Ekins puts it, “judicial law-making”. Equitable dispensation therefore could create an avenue for the court to provide a remedy without the need for them to simultaneously strike-down legislation.

In any event, it is important that we do not view dispensation from legislation as something which is alien to our legal culture. As Thomson rightly argues, a great many decisions of the Court of Session remain “a challenge to any blanket rule that the nobile officium cannot be used contrary to an express statutory provision”. It remains true that the powers of the nobile officium can be used as extensively as the Court of Session considers fit and equitable, and even legislation of the UK Parliament does not necessarily stand in the way of that equitable jurisdiction. In practical reality though, the issue before the Court of Session would have to be an incredibly serious one for the court to consider exercising their jurisdiction to disapply contentious pieces of legislation, and most counsel would be reluctant to lead such an argument except in the gravest of circumstances. But the power of the court to dispense petitioners from parliamentary legislation need not be seen as some novelty: the nobile officium has been entrenched in the Scots legal system since before the Union, and its power of dispensation has been exercised frequently since its inception and, indeed, after the Union. Whether equitable dispensation impinges on parliamentary sovereignty is another question for another day, but what is certain is that judges have been dispensing petitioners from statutory provisions for centuries in Scotland – and even at the time of Dicey. Equitable dispensation is part and parcel of the United Kingdom’s constitution, even if in modern times it is somewhat underused.

Conclusion

It is possible that the nobile officium may have some undertapped utility for public lawyers in respect of challenges to UK parliamentary legislation. In a general sense, it does seem to be possible that where: i) parliamentary legislation gives rise to inequitable circumstances; and ii) there is no other remedy available to the petitioner, petitioners could seek a dispensation from statute on the basis that parliament did not intend for those inequitable circumstances to arise. Such an argument may be accompanied by legislative interpretation arguments by virtue of section 3 HRA, or indeed common law arguments anent the rule of law. In respect of the Rwanda Bill particularly, a petitioner maligned by a provision of the Bill would probably encounter great difficulty in arguing that parliament did not intend for inequitable circumstances to arise, if the statutory provision makes it clear that parliament intended to create any such inequitable circumstances. But, as I have endeavoured to explain, the court’s consideration of parliamentary intention in terms of the nobile officium can often even look beyond express provisions. Perhaps then Joanna Cherry was right to call for the protection of the nobile officium in the Rwanda Bill, for it does not seem fitting to limit a jurisdiction of last resort in such a way. In the words of Lord Justice-Clerk Ross: “it is neither wise nor desirable to define exhaustively or comprehensively all the circumstances in which resort may be had to the nobile officium”.

The nobile officium is therefore not a tool that public lawyers should leave on the shelves of history, but one that they should keep locked away in their advocate’s toolkit, should that day of reckoning arrive.

With thanks to Aileen McHarg, Stephen Thomson, Paul Scott and Se-Shauna Wheatle for their comments on earlier drafts of this post.

Jamie McGowan is a Devil at the Faculty of Advocates and a Doctoral Researcher in Public Law at the University of Glasgow.

(Suggested citation: J. McGowan, ‘The Nobile Officium and Public Law: An Undertapped Resource?’, U.K. Const. L. Blog (12th March 2024) (available at https://ukconstitutionallaw.org/))