A Scottish court will decide on Monday 21 October whether to seek an extension to the current Brexit deadline on behalf of the UK prime minister, against his declared intentions.
The case before the Inner House of the Court of Session in Edinburgh concerns the prime minister Boris Johnson's compliance with the requirements of the European Union (Withdrawal) (No 2) Act 2019, which is known colloquially as 'the Benn Act'.
The Act requires the prime minister, by no later than 19 October, to send a letter to the president of the European Council requesting a three-month extension to the 31 October Brexit deadline in the event that any of the conditions laid out in the Act are not met. The Act requires the letter to be sent if there is no agreement reached by UK and EU counterparts on the terms of the UK's withdrawal from the EU, or if an agreement reached has not been passed by the UK parliament, or if a 'no deal' Brexit has been rejected in a vote of UK parliamentarians. The form that the letter must take is set out in a schedule to the Act.
A petition aimed at forcing the prime minister to send the extension letter in the event the statutory duty arises is being pursued by businessman Dale Vince, SNP MP Joanna Cherry QC and Jolyon Maugham QC. They believe an order by the court is necessary after the prime minister said that the UK will leave the EU without a deal on 31 October, despite what the Act stipulates, if no agreement is reached before then with EU counterparts.
The government has said it will comply with the law. Reports have suggested that the prime minister may look to find legal avenues to avoid a Brexit extension beyond 31 October, including by possibly sending a second letter to the European Council president in a bid to dissuade the remaining EU 27 countries from granting the extension.
On Monday the Outer House of the Court of Session rejected the petition brought against the prime minister, but an appeal was fast-tracked to the court's Inner House.
On Wednesday judges at the Inner House determined that there is currently "no basis" for issuing the order sought by the petitioners. It considered the assurances the government has given about its compliance with the law and said that, as a result, there are "no reasonable grounds" for suspecting the prime minister will act unlawfully. However, they said they would revisit the matter on Monday 21 October at which time it said it expects "the position ought to be significantly clearer".
Jim Cormack QC, an expert in litigation at Pinsent Masons, the law firm behind Out-Law, said: “The decision of the Inner House of the Court of Session applies sound legal common sense. Few would disagree that it is difficult to predict with certainty what will happen between now and the Benn Act deadline of 19 October. For that reason it’s understandable why the court has taken the unusual step of deferring a final decision to see how this complex political scenario plays out."
In his leading opinion before the Inner House, Scotland's most senior judge Lord Carloway said it was right to allow the current "political debate ... to be played out in the appropriate forum", and confirmed the court "may only interfere in that debate if there is demonstrable unlawfulness which it requires to address and to correct".
Lord Carloway said: "Before coercive measures are granted, the court must be satisfied that they are necessary; i.e. that there are reasonable grounds for apprehending that a party will not comply with the relevant statutory or other legal obligation. In the normal case, that will often involve that party having already failed to comply with the obligation within the statutory or other time limit."
"In this case, whether the prime minister will ever require to send a letter containing an extension request is uncertain. The UK government and the EU may reach a deal. Parliament may approve a 'no deal' Brexit. If neither event occurs, it has not been disputed that the PM must send the letter. Until the time for sending the letter has arrived, the PM has not acted unlawfully, whatever he and his officials are reported to have said privately or in public. The existence of these statements, which are made in a political context, does not give ground for reasonable apprehension of future noncompliance...," the judge said.
"The situation remains fluid. What is known is that, over the next two weeks, circumstances will inevitably change. If 19 October comes and goes without either of the two conditions in the 2019 Act having been satisfied and in the absence of the letter which the prime minister would then be required to send, the petitioners would be entitled to return to court and seek an order ordaining the PM to comply with the terms of the 2019 Act within a prescribed, and possibly very short, period. It is only once that period has expired without the order being obtempered that the court would consider authorising an official to sign the letter which the PM may have failed to do," he said.
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