Court delays ruling on whether it will seek Brexit extension

A decision on whether the Court of Session could use a special power to sign a Brexit extension letter on behalf of the Prime Minister has been delayed.

Judge Lord Carloway said the court would make its decision after 19 October, the deadline set by the Benn Act for Boris Johnson to agree an EU withdrawal deal or else seek an extension.

While the legal team behind the case were pleased with the interim decision, saying “a sword of Damocles” was now hanging over Johnson, should he refuse to obey the law, Judges at the court said they could not rule until all the political decisions at Westminster had “played out”.

Lord Carloway 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."

In that situation, the court is expected to sit again on 21 October.

The case was brought by SNP MP Joanna Cherry along with lawyer Jolyon Maugham QC and businessman Dale Vince because they are concerned that the Prime Minister would not seek the extension.

But in a statement submitted by Johnson’s lawyer in a closely related case last week, the Prime Minister did promise to seek an extension if the conditions of the Benn Act were met.

That submission said that the Prime Minister “is subject to the public law principle that he cannot frustrate its purpose or the purpose of its provisions. Thus he cannot act so as to prevent the letter requesting the specified extension in the act from being sent”.

In light of this evidence, the court yesterday rejected an attempt to force the Prime Minister to seek an extension.

Today’s decision relates to a procedure unique to Scots Law called a “nobile officium” that would allow the court to resolve a dispute where no agreement between parties can be found – in this case, to sign an extension letter on behalf of the Prime Minister.

Speaking on the decision, Maugham said: “These cases are about keeping the Prime Minister on the straight and narrow.

“We have extracted from him a promise that he will comply with the law.

“If he breaks that promise he will face the music – including possible contempt proceedings. And the court are likely to make good in any failure on his part, including singing the Benn Act letter.”