wednesday, 9 october of 2019

Brexit

Scottish Appeal Judges Hold Off Sending Brexit Extension Letter

A Scottish court has delayed a decision on whether Boris Johnson should be forced to ask for a Brexit extension until after the final deadline has passed next week.

Anti-Brexit campaigners had asked the three judges, Lord Carloway, who is the lord president, Lord Brodie and Lord Drummond Young, to issue court orders forcing Johnson to send the letter to the EU as required under the Benn act.

That legislation, the European Union (Withdrawal) (No 2) Act, requires Johnson to write to the EU asking for an extension until 31 January if he fails to get a Brexit deal agreed at Westminster by 19 October.

In an unusual move, Carloway said the issues were so significant and time-sensitive that the court could not make a definitive ruling on whether the prime minister had broken the Benn act until 19 October had passed.

He said the judges would suspend a final ruling on whether to order Johnson to comply, or send the Benn act letter to the EU itself, until Monday 21 October. Then, he said, "the court will expect to be addressed on the facts that present themselves".

They had also asked the court to use their unique powers, known as nobile officium, to write that letter on his behalf if he failed to do so. Carloway said they would also postpone a decision on that until 21 October.

Carloway, Scotland’s most senior judge, had signalled on Tuesday he was likely to order a delay after Lord Pentland, a judge sitting in the outer house of the court of session, had ruled on Monday that the prime minister’s promises to obey the Benn act had to be taken seriously.

Carloway, Brodie and Drummond Young’s ruling broadly supported Pentland’s view that since the prime minister had not yet broken the law it was difficult to issue an interdict, or injunction, forcing him to obey it.

It would also be inappropriate, they added, for the court to use its nobile officium powers to write and send that letter on the prime minister’s behalf for the same reasons.

"In this case, whether the prime minister will ever be required to send a letter seeking an extension is uncertain. The UK government and the EU may reach a deal. Parliament may approve a no-deal Brexit," Carloway said. "Until the time for sending a letter arises, the prime minister has not acted illegally, whatever he or his officials have said privately or in public."

As a result, the applicants "do not have grounds for a reasonable apprehension" that Johnson would break the law.

In Tuesday’s emergency hearing, lawyers for the UK government had insisted the prime minister’s promises to obey the Benn act were sincere. The government acknowledged on Friday, for the first time, that Johnson was legally bound to both send the required letter and not to frustrate or sidestep the act.

David Johnston QC, acting for the government, told the court on Tuesday the prime minister also accepted he would face legal sanctions if he broke the law. "I would have to accept that the court will be able to deal with that one way or another," he said.

Johnston said it would be unjustified and inappropriate for the court to use its nobile officium powers in this type of case. Anti-Brexit campaigners should instead seek a judicial review but only after the Benn act deadline had passed.

Carloway said the court rejected that approach. He said there was so little time available between 21 October and Brexit day on 31 October that starting new legal proceedings was impossible.

The court heard on Tuesday that restarting the process would almost certainly mean an outer house hearing, an appeal to the inner house of the court of session, then an appeal to the UK supreme court in London, which would then have to return its decision back to the court in Edinburgh to enact it.

And in order to meet the Benn act’s requirements, the letter seeking an extension would need to be sent to all 27 EU member states as well as all the relevant EU institutions.

In Tuesday’s hearing, Aidan O’Neill QC, acting for the litigants Dale Vince, Jolyon Maugham and Joanna Cherry, had said there was copious evidence from Johnson, government ministers and Downing Street officials that the UK government planned to thwart or sidestep the Benn act.

The lead theory, set out in newspaper briefings and leaked memos, is that Downing Street will privately lobby EU governments to block an extension request, or use some other device to stop it.

"One shouldn’t be taken in by any kind of schtick that the prime minister is simply an overgrown schoolboy playing at being prime minister, as if he was Just William leading his cabinet band of outlaws," O’Neill said. "This is serious stuff. This is calculated. This is deliberately focus-grouped, workshopped and war-gamed to appeal to their base."

(Published by The Guardian, October 9, 2019)
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