Boris’ double game: who’s being played?

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The Outer House of the Court of Session in Edinburgh has today issued its written judgment on whether the Prime Minister has to comply with the Benn Act and request an extension of Brexit Day, as detailed in our previous post from 2 October 2019.

During the hearing in Edinburgh on Friday 4 October, the UK Government’s representative in Scotland, the Advocate General for Scotland, made clear that if by 19 October Parliament had neither passed a vote agreeing any withdrawal agreement, nor passed a motion agreeing to no-deal, then the Prime Minister would send a letter to the European Council seeking an extension to 31 January 2020 by no later than 19 October 2019, in accordance with the Benn Act.

The Advocate General also confirmed in court that the Prime Minister would immediately agree any extension to 31 January 2020, if offered by the European Council. If a different extension is offered, then he would also agree to it within 2 days – unless a motion against this is passed by the House of Commons within 2 days or by 30 October, whichever is sooner – again in compliance with the Benn Act.

The UK Government did not try to argue that the Benn Act was some way unlawful, unenforceable or unconstitutional, and did not deny the obligation on the Prime Minister to seek an extension if that obligation arose under the terms of the Benn Act.

On that basis – and despite the UK Government, cabinet ministers and the Prime Minister himself repeating, in Parliament and beyond, that no extension would be requested and that the UK would be leaving the EU with or without a deal on 31 October 2019 – the court found that it was not necessary to issue a court order at this stage compelling the Prime Minister to comply with the Benn Act. It considered that the UK Government had made “unequivocal assurances before the court in the pleadings, in the note of argument and in oral submissions that they will comply with the [Benn] Act.”

The Court concluded in particular that “there can be no doubt that the [Prime Minister] now accepts that he must comply with the requirements of the [Benn] Act and has affirmed that he intends to do so.”  It also found that the Advocate General is an officer of the court, and that the UK Government had “in effect” undertaken to comply with the Benn Act, and that public comments made by the Prime Minister and others to the contrary were expressions of political policy and were not intended to be taken as “conclusive statements of the government’s understanding of its legal obligations.” Boris’ double game is obvious – the question is whether he’s playing the courts or the public.

Although the Court declined to issue an order against the Prime Minister, it commented 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.”

It is being reported that an appeal against this judgment will be heard in the Court of Session Inner House tomorrow, being Scotland’s highest court, and a possible UK Supreme Court hearing on this matter during the week commencing 14 October.

In short, subject to the outcome of any appeal stage, the implications of this judgment are that the UK Government is regarded as having effectively undertaken to comply with the Benn Act and will seek an extension to 31 January 2019 by sending a letter to the European Council by no later than 19 October. If it doesn’t, swift and urgent applications for a court injunction compelling compliance will inevitably follow. As long as the UK Government and the Prime Minister continue to publicly declare that the UK is leaving in all circumstances on 31 October, it feels like the UK Government remains on a collision course with the law and courts.