09 October 2019

Financial Times: Scottish court delays decision over Brexit extension letter

Scotland’s highest court has suspended consideration of an attempt to force Boris Johnson to abide by a law that could force him to seek to delay Brexit, a decision backers of the effort said left a legal “sword of Damocles” hanging over the prime minister.

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https://www.ft.com/content/206300e0-ea7f-11e9-85f4-d00e5018f061

Edinburgh’s Court of Session on Wednesday put on hold petitions that asked it to force Mr Johnson to abide by the so-called Benn Act or to arrange for a court official to sign a letter requesting a Brexit delay in the event the prime minister refused to do so. The case has highlighted the gulf between Mr Johnson’s repeated claims that he will not request a delay and a government assurance made in the Scottish court on Friday that it will obey the law. The Benn Act requires the prime minister to seek a delay to the UK’s scheduled October 31 departure from the EU if he has not secured parliamentary approval for a withdrawal agreement or a no-deal departure by October 19. The decision by three judges of the Edinburgh court’s higher Inner House to put on hold the petitions until October 21 means legal proceedings could be restarted immediately if Mr Johnson refused to request a delay. “There’s a sword of Damocles over the prime minister’s head to comply with the Benn Act and we hope he does,” said Elaine Motion, a lawyer for the petitioners and chairman of law firm Balfour and Manson. The decision to suspend rather than throw out the case suggests a lack of judicial confidence in the prime minister’s intentions to obey the law. The judges said there was currently no basis to grant orders requested by environmentalist Dale Vince, anti-Brexit legal campaigner Jolyon Maugham QC and Scottish National party MP Joanna Cherry. The judges agreed with a lower-court ruling that they should take on trust assurances Mr Johnson would obey the law, since his suggestions that he would refuse to follow what he has called a “surrender act” were expressions of political policy. “The court may only interfere in [Brexit political] debate if there is demonstrable unlawfulness which it requires to address and to correct. At present there has been no such unlawfulness,” said the decision, read by Lord Carloway, the court’s lord president. [...]

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Related article on Financial Times: Scottish court rejects plea to force Johnson to follow Brexit law

Related article on The Guardian: Johnson will write to EU requesting article 50 extension, court told

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