Court rejects latest request to force PM to ask for Brexit extension
Anti-Brexit campaigners have failed in an attempt to force Boris Johnson to ask for an extension to article 50 if he is unable to get a Brexit deal through parliament.
Lord Pentland, sitting in the court of session in Edinburgh, rejected their request for a court order instructing the prime minister to seek an extension if he cannot get a deal passed by the Commons this month.
Pentland said he had to take at face value pledges made by the UK government on Friday that Johnson would write the letter seeking an extension on 19 October as required under the so-called Benn act. Pentland said those assurances were unequivocal.
“I approach matters on the basis that 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 judge ruled.
As a result he stated: “I am not persuaded that it is necessary for the court to grant the orders sought or any variant of them.”
The European Union (Withdrawal) (No 2) Act, known as the Benn act, states that if Westminster does not agree to a Brexit deal by 19 October, the prime minister has to write to the EU seeking an extension to article 50 until 31 January.
Pentland dismissed arguments by Aidan O’Neill QC, the lawyer for the anti-Brexit campaigners, that Johnson and officials at No 10 were already plotting to thwart the act’s provisions, and had said so repeatedly.
“I am not satisfied that the petitioners have made out their case based on reasonable apprehension of breach of statutory duty on the part of the prime minister,” the judge said.
Their request to him for an interdict blocking the prime minister from frustrating the Benn act, say by appealing in secret for an EU member state to reject the UK’s request for an extension, was not specific enough. “The terms of the interdict are not sufficiently precise and clear,” he said, adding: “In my view, this language is too broad.”
The UK government’s lawyers told the court on Friday Johnson would write that letter if required and argued that a legally binding order was therefore not needed.
The government also promised not to thwart the act’s provisions by lobbying EU member states to reject calls for an extension to article 50.
Anti-Brexit campaigners are expected to appeal against the decision on Tuesday, when they will ask another Scottish court to write the article 50 extension letter if Johnson fails to do so.
The campaigners – Dale Vince, a green energy entrepreneur, Jolyon Maugham QC, an anti-Brexit campaigner, and Joanna Cherry QC, a Scottish National party MP – want the inner house of the court of session to use its unique nobile officium powers to act on Johnson’s behalf.
Those powers allow the court of session to take action in a situation where a remedy is needed, but this case is seen as highly unusual.
Maugham said he was disappointed by the ruling but said the case had nonetheless extracted a promise from the UK government to honour the Benn act. He tweeted: “As we have extracted promises from the government, 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.”
The applicants had hoped Pentland would rule in their favour after the government’s promise appeared to have been contradicted as Friday’s hearing was taking place, when an unnamed Downing Street source told the BBC the government was already planning to sidestep the Benn act.
Soon after the court heard Johnson was promising to send the extension letter, the BBC’s source appeared to downplay the significance of that pledge. He said the Benn act’s provisions imposed “a very specific narrow duty [which] can be interpreted in different ways.
“But the government is not prevented by the act from doing other things that cause no delay, including other communications, private and public. People will have to wait to see how this is reconciled. The government is making its true position on delay known privately in Europe and this will become public soon.”
Those quotes were read to Pentland by O’Neill, the lawyer for Vince, Maugham and Cherry, just after the government’s promises had been set out to the court by Andrew Webster QC. O’Neill said the remarks to the BBC proved that the government could not be trusted.