One of the classic applications of the nobile officium is where the court supplies legal norms deemed absent or omitted from statute. This has tended to be known as a casus improvisus or casus omissus. The essential idea is that the legislature has inadvertently omitted from statute some aspect, detail or mechanism relating to an unforeseen situation that has now arisen. It is important that the omission is inadvertent, as the role of the court is not to modify, supplement or extend the scope of the statute when using its nobile officium in this way.
An example of this was seen in the recent case of Cumbria County Council, Petitioners  CSIH 92. The case related to orders made by the High Court of England and Wales for the placement of children in secure accommodation in Scotland. However, the English courts essentially had no legal power to make orders for those children placed in Scotland due to the lack of a corresponding statutory power in the relevant legislation. The issue had previously been raised in the High Court of England and Wales in In the Matter of X (A Child)  EWHC 2271 (Fam), in which it was held that the appropriate way forward was for the English local authorities to petition the nobile officium in Scotland. These proceedings followed from that decision, with petitions being presented by Cumbria County Council, Stockport Metropolitan Council and Blackpool Borough Council.
The Inner House was satisfied that there was a casus improvisus in the legislation, as the recognition of a Scottish order in England and Wales had express statutory provision, whilst the recognition of an English/Welsh order in Scotland had no express statutory provision. The petition was further supported by the fact that the welfare of children was involved, invoking the parens patriae jurisdiction with which the nobile officium has a degree of overlap (but which remain distinguishable). As interim orders were sought, the balance of convenience test was applied and satisfied. Accordingly, the court held that the measures adopted by the High Court of England and Wales would be recognised and enforceable in Scotland as if they had been made by the Court of Session.
There are a few points worth noting about this case in relation to the nobile officium.
First, the court agreed with my assessment of the applicability of precedent to the nobile officium (see the judgment at para. 21 and Thomson, The Nobile Officium, pp.241-252). In a nutshell, the court will take encouragement from prior analogous applications of the nobile officium, but precedents are not decisive for the competency of a petition. The important of this latter point in particular was explained by Lord Drummond Young (para. 21):
“it is no bar to its [the nobile officium’s] application that no precedent exists that is applicable to the precise circumstances of the case. That conclusion is supported by the fact that the primary use of the jurisdiction is to deal with unforeseen circumstances, which obviously may be unprecedented. Nevertheless, before the jurisdiction is exercised, the court will normally consider whether there has been an analogous application in the past, and if there has that will support the exercise of the jurisdiction. If there has been no previous analogous decision, however, that is not decisive: in such a case the court must decide whether injustice and oppression will result if it does nothing, and if that is so there is clearly a good case for the invocation of the jurisdiction. On the applicability of precedent to the nobile officium, we should record that we have obtained great assistance from the discussion at pages 241-252 of Professor Stephen Thomson’s work, The Nobile Officium, the first monograph to be published on the subject.”
Second, an aspect of the court’s conclusion that there was indeed a casus improvisus (as opposed to a deliberate statutory omission) is worth noting. The court will be required, on the evidence, to be satisfied that the omission is indeed inadvertent. It is interesting to note the following passage of the judgment in this regard (para. 37):
“We were informed that officials of the Scottish and United Kingdom governments have held discussions about the possibility of promoting new legislation to address the anomaly in the existing legislation. The provisional view of both administrations is that the best way to resolve the problem would be primary legislation in the United Kingdom to amend section 25 of the Children Act 1989.”
One wonders to what extent this recognition from officials in the Scottish and UK governments played a role in the court’s satisfaction that the statutory omission was unintended. In the High Court of England and Wales, Sir James Munby P suggested a joint reference to the Scottish Law Commission and the Law Commission of England and Wales – in the Inner House’s view, that would not be necessary in view of the fact that “discussions are in progress between the Scottish and United Kingdom governments about remedying the problem in the legislation” (para. 38).
Third, the court has continued the commendable trend of placing greater emphasis on the practicality of the facts and issues, than being deterred by procedural minutiae: “The critical objective is to ensure the welfare of the child concerned, in the particular circumstances which have arisen. This requires a practical approach, so that procedural niceties are not allowed to stand in the way of the fundamental policy that underlies the jurisdiction. ” (para. 26) This is consistent with the rationale of the nobile officium as a device for alleviating procedural obstacles which result in sufficient injustice to justify the court’s extraordinary equitable intervention.
Finally, the court considered an additional reason for its intervention ex nobile officio in the following terms: “if nothing is done, it is likely that repeated applications to the Court of Session will be required to cover every case where the English High Court places a child in secure accommodation in Scotland; such cases are likely to recur regularly. That situation clearly calls for a statutory remedy.” (para. 37) This brings to mind the recurring applications to the nobile officium made in the areas of trusts and bankruptcy, covered in detail in the book, the necessity of which was eventually reduced or removed by legislation which provided for the circumstances in question. Clearly, and rightly, the court is concerned not to see the nobile officium become the go-to remedy whenever this situation arises in future.
It remains to say that this case brought to the author’s mind Wan Ping Nam v Minister of Justice of the German Federal Republic, 1972 JC 43. Though a case in the High Court of Justiciary, it too concerned a casus improvisus relevant to inter-jurisdictional issues. The Extradition Act 1870 provided that a criminal accused of an extraditable crime shall, if a foreign warrant for his arrest is duly authenticated and certain evidence produced, be committed to prison by a police magistrate. A statutory right to apply for a writ of habeas corpus was conferred, but the Act purported also to extend these provisions to Scotland where, of course, habeas corpus does not form part of the law. The High Court of Justiciary held, however, that the “plain intention” of the Act was to provide the opportunity of relief to persons committed to prison under the legislation, and the court therefore exercised its nobile officium to provide a remedy to the effect of a writ of habeas corpus. “Procedural niceties” relevant to the inter-jurisdictional application of legal rules were not permitted to stand in the way of ascertained legislative intention to the detriment of the petitioner.
Wan Ping Nam, and Cumbria County Council, show the continuing utility of the nobile officium in tackling unforeseen or unprovided for issues of a cross-border or inter-jurisdictional nature, in particular to smooth out unintended asymmetries between the UK’s constituent jurisdictions. These issues can be found across many areas of law, but it would be interesting to consider whether the nobile officium might find relevance in the devolution or constitutional context which, as recent legal developments show, are a continuing source of inter-jurisdictional controversy.
– Stephen Thomson