I was reminded of Louis Sachars' modern classic Holes in the last few weeks.

Set in the Texan desert, the protagonist and his fellow inmates are made to dig a hole every day - five-feet wide and five-feet deep. The area surrounding the prison is an endless expanse dotted with holes.

The law contains holes too.

Perhaps most widely known (and exploited) is the loophole, but there are others which appear from time to time.

Sometimes those holes are plugged by parliament passing a piece of legislation, but sometimes the law simply hasn't anticipated a particular set of events or circumstances and one discovers then that there is a hole where one might have expected to find a legal rule.

Scotland's answer to this conundrum is the quaintly-named nobile officium (pronounced: noh-billy-offick-ay-um). Those ancient words have entered the vocabularies of many people in the last few weeks in connection with court proceedings brought against the Prime Minister in the Court of Session.

But what on earth do they mean?

In short, the nobile officium is the power unique to Scotland's highest court to provide a legal remedy where there is no legal rule governing an unforeseen set of circumstances. In other words: it is the power of Scotland's supreme court to fill in the holes in the law.

It may also be used to mitigate the effect of the law where it is found that the strict application of the law in a specific situation would be particularly harsh or unfair.

The nature of the power means that the court will only exercise it in extraordinary circumstances. It also means that it could conceivably be called upon in just about any area of the law. It's been used to ensure that documents are signed where it has become impossible for the intended signatory to sign; to challenge a finding of contempt of court; to sort out gaps in a deed of trust (where the trustees didn't have all the powers they needed to properly perform their duties as trustees); and it has even been used to order councillors to meet to elect officials where too few of them had turned up to a meeting.

In other words, in exceptional circumstances, and provided the legal requirements for calling upon the power are satisfied (which are beyond the scope of this piece), the nobile officium can come to the rescue in even the most obscure and unexpected circumstances.

So should you ever find yourself in an unforeseen legal hole, consider whether the nobile officium can help you escape.


Peter Begbie