AN appeal is expected to be heard today after the Court of Session rejected
a plea to force Boris Johnson to request a extension to the Brexit negotiations.
Lord Pentland said the Government’s “unequivocal assurances” that the PM would comply with the Benn Act – anti-No-Deal legislation passed by MPs – meant it was “not necessary for the court to grant the order sought”.
But Aileen McHarg, Professor of Public Law and Human Rights, University of Durham, described the decision as “a technical loss for the petitioners ... but a de-facto win, because they forced the Government to give assurances that it will comply with the Benn Act.”
The case had been brought the SNP’s Joanna Cherry, anti-Brexit campaigner Jolyon Maugham (below), and businessman Dale Vince.
If successful, the legal action, launched at the Outer House of the court, would have seen Johnson forced to follow the law and prohibit him from frustrating its purpose.
The Benn Act compels the Government to write to Brussels to ask for an extension to the Brexit negotiations on October 19 if no deal is reached by the end of next week’s European Council summit.
The Prime Minister has said he would rather be “dead in a ditch” than ask for an extension.
On Friday, Aidan O’Neill QC, representing the petitioners, pointed the judge towards an interview with the BBC on September 16 2019, where Johnson said: “We’re going to come out on October 31 and it’s vital that people understand that the UK will not extend. We won’t go on remaining in the EU beyond October.
“What on earth is the point? Do you know how much it costs?”
But documents submitted to the court on behalf of the Prime Minister on Friday unexpectedly revealed that Johnson accepted he must send the letter under the terms set out in the legislation.
Andrew Webster QC, representing the UK Government, argued this should be enough for the court to be satisfied the Johnson would comply with the legislation.
He added that imposing any orders could “ruin” the negotiating strategy with the EU.
In his opinion, Lord Pentland said Johnson’s repeated denials that he would never extend the Brexit deadline needed to be “understood in the political context in which they were made”.
READ MORE: WATCH: Joanna Cherry's brilliant Brexit performance on Channel 4 News
“That is as expressions of the Government’s political policy. They were clearly not intended to be taken as conclusive statements of the Government’s understanding of its legal obligations,” he added.
The Government, in its response to this had, he said, accepted “that in executing its political policy it must comply with the 2019 Act”.
Pentland said that this meant there was “no need for coercive orders against” the Government or the Prime Minister.
But the judge also sent out a stark warning to Number 10, saying it would “be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the Crown for the Prime Minister or the Government to renege on what they have assured the court that the Prime Minister intends to do”.
The three have lodged an appeal which is expected to be heard tomorrow.
Taking to Twitter, Maugham said: “I would rather live in the world the court believes continues to exist. But I doubt we do.”
He added: “As we have extracted promises from the govt, the question whether this loss matters depends on whether you think I am right or the court is right.
“But, on any view, there are now risks of an unlawful Brexit that would not, had the decision gone the other way, have existed.
“I expect the Inner House of the Court of Session tomorrow to hear our appeal.”
Cherry said there was good news to be taken from Lord Pentland’s decision.
READ MORE: Boris Johnson has ‘no plan’ if No-Deal Brexit is blocked
“As a result of this important court action, we have forced the Tory Government to concede that the Prime Minister will comply with the law, and promise to send a letter requesting a Brexit extension and not frustrate the purpose of the Benn Act,” she said.
“However, given Boris Johnson’s slippery track record of acting unlawfully, and the contradictory statements issued by the UK Government – we do not trust the Tory leader or believe he can be taken at his word to obey the letter and spirit of the law.”
The three petitioners will also be in the Inner House of the Court of Session today on a separate action.
Cherry, Dale and Maugham will be asking the judges to use nobile officium powers unique to the Scottish Courts to write the Article 50 extension letter if Johnson fails to do so.
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