Time is ticking as Boris returns to court

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The Brexit judicial saga keeps dragging on for the Prime Minister this week, as Scotland’s Outer House of the Court of Session will hear an application brought by SNP MP Joanna Cherry QC, Jo Maugham QC and businessman Dale Vince at an emergency court hearing his Friday. The ruling is expected to arrive on Monday 7th October.

The European Union (Withdrawal) (No 2) Act 2019 (aka the Benn Act) became law on 9th September 2019.  The Act states that if by 19 October 2019 no withdrawal agreement is approved by Parliament, and there is no approval by Parliament to leave without a withdrawal agreement, then the Prime Minister is personally required to send a letter to the President of the European Council by no later than 19 October to request an extension to the Brexit exit day from 31 October 2019 to 31 January 2020.

The Act sets out the specific wording of this letter.  If all 27 EU Member States agree to the requested extension, the law then requires the Prime Minister to accept it immediately.  If a different extension date is agreed or other conditions attached by the EU27, the Prime Minister must accept this extension within 2 days or by 30 October (whichever is sooner) – unless he puts it to a vote in the House of Commons within 2 days of the EU27’s decision and the Commons does not approve the extension.

Under the Benn Act, the Prime Minister can only withdraw or modify the extension request to 31 January 2020 once made if – by no later than 30 October – Parliament either approves a withdrawal agreement, or approves to leave on 31 October without a withdrawal agreement.

Downing Street and other cabinet ministers have consistently said that the UK Government will comply with the law, while insisting that the UK will be leaving the EU deal or no deal (or “do or die”) on 31 October.  Given the ambiguity of their position, and the apparent inconsistency between complying with the Benn Act and leaving on 31 October without a deal, this urgent application for an order in the Court of Session has been launched.

The Scottish claimants are seeking the court to grant an interdict (the Scots’ equivalent of an injunction) to force the Prime Minister to ask the EU for an extension to Article 50, should he fail to pass a Brexit deal through the House of Commons by the 19th of October, as per the requirements of the Benn Act. In an unprecedented move, but a sign of the extraordinary times we are facing, the court will be asked to include a penalty of a fine and imprisonment on the Prime Minister – should he fail to comply with the Court of Session’s order to comply with the Benn Act and send the letter to the European Council in accordance with its literal terms and purpose, or does anything to undermine that extension request.

The legal challenge will also include a request for exercising the Nobile Officium – a power unique in Scots Law. Simply put, the claimants will ask that any court order should also include a provision enabling the Clerk to the Court of Session to sign a letter to EU leaders. The letter would request a Brexit extension in accordance with the Benn Act, should Mr Johnson refuse to do so and fail to comply with the court order.

Whoever loses this judicial battle is likely to appeal to Scotland’s highest civil court – the Inner House of the Court of Session – and court time on Tuesday 8 October has already been set aside for any appeal.  As with the prorogation case, the UK Supreme Court is likely to become embroiled in determining matters of the highest constitutional and political controversy, and the UK constitution is again being tested to its very limits by the actions of the UK Government.