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Court refuses article 50 signature order against Prime Minister

7 October 2019

Prime Minister Boris Johnson's "unequivocal assurance" to the Court of Session that he would comply with the Act requiring him to seek an extension of the article 50 process if necessary to prevent a no-deal Brexit, has persuaded a judge that it is unnecessary to grant orders designed to ensure compliance with the Act.

Lord Pentland in the Outer House refused the petition by businessman Dale Vince, Jolyon Maugham QC of The Good Law Project, and Joanna Cherry MP, which sought orders relating to the duties imposed by the European Union (Withdrawal) (No 2) Act 2019. Under that Act, if no agreement is reached with the EU by 19 October on the terms of the United Kingdom's withdrawal from the EU and the House of Commons does not consent to withdrawal without agreement, the Prime Minister must on that date write a letter seeking an extension of time in the terms set out in the Act.

The petitioners had asked the court, first, to grant an interdict against the Prime Minister or anyone else acting for the UK Government, from seeking to frustrate the will of Parliament, including by sending any other document suggesting that was not the will of the UK, delaying in sending the letter, or seeking to persuade any other member state not to accept the request. They also sought an order under s 45(b) of the Court of Session Act 1988 ordaining the Prime Minister to send the letter.

They pointed to repeated statements by Mr Johnson that the UK was leaving the EU on 31 October, "no ifs or buts", and there were no circumstances in which he would ask for a delay, as giving rise to a reasonable apprehension that that the Prime Minister and the Government intended unlawfully to refuse to carry out the obligation imposed under the 2019 Act, such as to justify court orders. A general assurance by the Prime Minister that he would comply with the law was not, in the circumstances, sufficient to displace this.

In answers the Prime Minister stated that he accepted that if the conditions in s 1 were met, he would send the letter as required, that he would comply with the further terms of the Act depending on the EU's response, and that he was subject to the public law principle that he could not frustrate the purpose of the Act.

Giving judgment, Lord Pentland said it was neither necessary nor appropriate for the orders to be granted. It was not said that the answers fell short of what was required to comply with the Act, and "The Prime Minister and the Government having thus formulated and presented to the court their considered legal position, there is no proper basis on which the court could hold that they are nonetheless liable to fail to do what they have in effect undertaken to the court that they will do."

The statements relied on by the petitioners "must be understood in the political context in which they were made; 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 concluded: "The court should not pronounce coercive orders (or decree for interdict) unless it has been established on the basis of cogent evidence that it is truly necessary for such orders to be granted. In my opinion, that has not been done in the present case."

The judge added: "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."

Lord Pentland declined to uphold a challenge to the competency of the petition, as although the petition was not one for judicial review, it was brought in a manner expressly authorised by the Court of Session Act. Nor was it premature, since it was based on reasonable apprehension. However the terms of the interdict sought were not sufficiently clear and precise to have been granted as sought.

Click here to view Lord Pentland's opinion.

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