Court asked to consider if PM’s Brexit delay tactic is lawful

Boris Johnson Image copyright AFP

Scotland’s highest court is to consider whether Prime Minister Boris Johnson has fully complied with a law requiring him to ask for a Brexit delay.

He sent an unsigned letter to Brussels asking for an extension along with a signed letter saying he believed a further delay would be a mistake.

The Court of Session will be asked to decide whether this broke a promise not to “frustrate” the so-called Benn Act.

The government maintains it has fulfilled its legal obligations.

The court was originally asked earlier this month to consider using “nobile officium” powers to request a Brexit extension on the prime minister’s behalf – but the judges delayed making a ruling until the political situation become clearer.

Image copyright AFP
Image caption Joanna Cherry wants to use the courts to force the prime minister to keep his word

One of the campaigners bringing the action, SNP MP Joanna Cherry, said the legal action had already been instrumental in forcing Mr Johnson to send the request for an extension late on Saturday.

She said: “Despite his childish trick of not signing the letter and sending a contradictory covering letter, the EU, who are the grown-ups in the room, have accepted the request and are considering it.

“I am quite convinced that Boris Johnson would not have sought the extension had he not been forced by the court action to promise the highest court in Scotland that he would.”

Ms Cherry said she and her fellow campaigners would now seek to maintain the pressure on Mr Johnson to keep his word by asking the judges to continue the case until later in the week.

“Our legal team are also instructed to remind the court that, as well as promising to comply with the letter of the Benn Act, the PM also promised not to seek to frustrate the purpose of the legislation,” she added.

“It will be for the court to decide whether his actions in failing to sign the letter of request and sending a letter setting out his contrary intentions are in breach of the undertakings he gave them or a contempt of court.”

Ms Cherry has been joined in the legal action by businessman Dale Vince and QC Jolyon Maugham.

Why is this back in court again now?

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Media captionLord Carloway explained why the court was delaying a decision

The Benn Act, passed in September, required Mr Johnson to request a three-month Brexit delay unless he could pass a deal or get MPs to approve a no-deal exit by 19 October.

Fearing he might find a way to circumvent this, campaigners sought to provide a “safety net” by asking Scotland’s highest court to use “nobile officium” powers to write a letter on the prime minister’s behalf if he failed to do so.

An earlier hearing was told Mr Johnson had given an undertaking to “fully comply” with the law and that he accepted he could not “frustrate” the purpose of the act.

The judges decided that the political debate had still to “play out” and therefore delayed making a decision.

They agreed the court should sit again on 21 October by which time they hoped the circumstances would be “significantly clearer”.

At a special sitting of the House of Commons on Saturday, MPs passed passed an amendment, put forward by Sir Oliver Letwin, delaying approval of Boris Johnson’s Brexit deal. This meant, by the terms of the Benn Act, he had to write to the EU requesting an extension.

He did send this request, along with the second letter, saying he believed a further Brexit delay was a mistake, late on Saturday.

The Inner House of the Court of Session will consider these latest developments when it reconvenes in Edinburgh at midday.

What is the nobile officium?

The procedure of petitioning the nobile officium is unique to Scots law but is far from being a forgotten backwater of the legal system.

Its name is a Latin term meaning the “noble office”.

The procedure offers the opportunity to provide a remedy in a legal dispute where none exists.

In other words, it can plug any gap in the law or offer mitigation if the law, when applied, would be seen to be too strict.

In this case, it could have seen an official of the court sign a letter to the EU requesting a Brexit extension, as set out in the Benn Act, should the prime minister have failed to do so.

On Saturday, in response to a question from Joanna Cherry, Commons Speaker John Bercow indicated he would be prepared to sign a letter to the EU asking for a delay if requested by the courts although he said he did not expect this to be necessary.



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