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Judges continue hearing on PM signature order to after extension deadline

9 October 2019

Appeal judges at the Court of Session have continued until after the legal deadline for reaching a Brexit deal, the hearing on whether to make an order against Prime Minister Boris Johnson requiring him to seek an extension of the article 50 notice period, or for a letter to be signed by the court in his place.

Lord President Carloway, Lord Brodie and Lord Drummond Young made the decision in the petitions by Dale Vince, Jolyon Maugham QC and Joanna Cherry MP, designed to ensure the Prime Minister's compliance with the European Union (Withdrawal) (No 2) Act 2019, known as the "Benn Act". One petition, presented first in the Outer House, sought an order for specific orders against the Prime Minister to achieve compliance with the Act; the other sought the exercise of the nobile officium of the court for a letter in terms of the Act to be signed by the clerk of court on behalf of the Prime Minister.

Under the 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 Lord Ordinary, Lord Pentland, held that it was neither necessary nor appropriate for orders to be granted as, despite repeated public statements by the Prime Minister that the UK would leave the EU on 31 October with or without a deal, it was stated in his answers to the petition that if the conditions in s 1 of the Act 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 (click here for report).

Lord Carloway, giving the opinion of the First Division, said the court agreed with the reasoning of the Lord Ordinary on the material available to him. "At this stage, there is no basis for granting any of the orders sought by the petitioners in either process", he ruled. "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."

It was still uncertain whether the Prime Minister would ever require to send a letter seeking an extension. "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 non-compliance for the reasons given by the Lord Ordinary."

However the situation remained fluid, and the court appreciated that there was a limited amount of time before expiry of the existing extension period. "It understands the concern of persons on both sides of the political debate on the Brexit issue. The political debate requires to be played out in the appropriate forum. The court may only interfere in that debate if there is demonstrable unlawfulness which it requires to address and to correct. At present there has been no such unlawfulness."

The normal course in those circumstances would be to refuse the petitions. However that would not prevent the petitioners returning to court after 19 October. It was clear that there would be changes in circumstances over the next 10 days, and requiring them to raise new proceedings might render any orders ineffective due to the passsage of time.

Lord Carloway concluded: "The court will for these reasons continue consideration of the reclaiming motion and the petition to the nobile officium until Monday, 21 October, by which time the position ought to be significantly clearer. At that time the court will expect to be addressed on the facts as they then present themselves."

Elaine Motion, chairman of legal firm Balfour+Manson, who acted for the petitioners, commented in response: "The decision today gives the Prime Minister time and space to comply with his legal obligations in terms of the Benn Act – and not to frustrate it."

She added that the court's decision "vindicates entirely the petitioners' actions in these cases which have resulted, for the first time, in the Prime Minister indicating in formal court documents that he will sign the letter and not seek to frustrate the Benn Act".

Click here to view the opinion of the court.

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