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Sun 8 December 2019
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“It would be destructive of one of the core principles of constitutional propriety… for the Prime Minister or the Government to renege on what they have assured the court,” Lord Pentland ruled.


The headlines will say, correctly, that the Government won the first ‘Benn Act’ case – but it might become a victory Boris Johnson’s administration comes to regret.

A petition, rejected today by the judge at the Scottish Court of Session, came from a group of MPs and campaigners, which asked the court to pass a binding order on the Government to obey the The European Union (Withdrawal) (No. 2) Act 2019, passed by Parliament late last month. This law instructs the Government to ask for an extension to the Brexit date, if a deal has not been agreed with the EU by 19 October.

At the hearing before Lord Pentland, lawyers for the Government mounted a very confused defence. In one of their written arguments they even advanced the proposition that Scotland’s highest court had no jurisdiction over Boris Johnson, because he didn’t live in Scotland.

However, today Lord Pentland settled the issue with a very double-edged result.

The judge began by pointing to the written documents he had been presented with in court. Signed by the Scottish Attorney General, these state: “The Prime Minister accepts in relation to the 2019 Act: (a) That, subject to section 1(5), in the event that neither of the conditions set out in section 1(1) and (2) is satisfied, he will send a letter in the form set out in the schedule by no later than 19 October 2019: section 1(3) and (4). b) That, subject to section 1(5), in the event that the European Council (“EC”) decides to agree to any extension for the period specified in the letter, he is obliged immediately to notify the President of the EC that the United Kingdom agrees to that extension: section 3(1).” 

And, most importantly: “That he 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.” 

Lord Pentland rejected the view of the petitioners that a binding order was needed, by instead treating the Government’s statement as a binding legal commitment, noting: “There can be no doubt that the first respondent [The Prime Minister] now accepts that he must comply with the requirements of the 2019 Act and has affirmed that he intends to do so.”

He added a veiled warning: “I approach matters on the basis 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.”

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So, the Government wins – but only on the basis that it will enact the ‘Benn Act’ and make no attempt to use any tricks to defeat the intentions of it. Any attempt to do so, as Lord Pentland makes clear, would land the Government straight back in court, with a lot of explaining to do.

Tomorrow, Scotland’s higher, Inner House of the Court of Session, will hear a linked case – a petition to the court to use its unique power of nobile officium to write the Brexit extension letter itself, and sign it on behalf of Boris Johnson.

The cases continue. 

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