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Fri 22 November 2019
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James Doleman reports from Scotland’s Inner House of the Court of Session on another legal wrangle involving the Government on Brexit.


A court in Edinburgh has been told that it cannot trust the Prime Minister to obey the law and should take asking the European Union for a Brexit extension into its own hands.

The Inner House of the Court of Session, the highest civil court in Scotland, has the unique power of nobile officium which obliges it “to provide a legal remedy where statute or the common law are silent, and prevent mistakes in procedure or practice that would lead to injustice”. Simply put, if something is wrong, it can take corrective action, even if there is no normal legal remedy.

A group of campaigners, including MPs such as SNP MP Joanna Cherry QC and the QC Jolyon Maughan, are asking the court to use its power to ensure the European Union Withdrawal Act 2019 – commonly referred to as the ‘Benn Act’ – is obeyed. Specifically, they want the court to bypass Prime Minister Boris Johnson and write a letter to the EU on 19 October, the deadline stated in the Act, asking for an extension to the Brexit date, with the court signing it. 

The hearing came after the judgment of the Scottish Court of Session yesterday, which stated that it had been assured that the Prime Minister would ask the EU for a Brexit extension if a deal is not reached by 19 October, even though his Government did not agree to make a legal pledge to this effect.

Aidan O’Neill QC, who also represented the campaigners at the recent Supreme Court case over the prorogation of Parliament, said that the Prime Minister was intentionally sending “contradictory messages” in an effort to sabotage the Benn Act. He noted a briefing from a “Downing Street source” sent to a journalist the night before the hearing which said of the Act: “Our legal advice is clear that we can do all sorts of things to scupper delay”.

O’Neill said: “This is serious, this is calculated, this is work-shopped, focus-grouped, war-gamed… Boris Johnson is not a overgrown schoolboy playing Just William with his gang of outlaws… this is a Trumpian appeal to his base.” He then asked the court to use its power: “If the law has to deal with extraordinary circumstances it needs to have extraordinary remedies.”

Responding for the Government, Andrew Webster QC, told the court that the Advocate General for Scotland, Lord Richard Keen, had lodged answers with the court guaranteeing that ministers, including the Prime Minister, would obey the law and had no intention of breaching either the letter or the intent of the Benn Act. But, he specifically ruled out Johnson or his ministers sending a separate letter to the EU and told the three judges: “Extra judicial statements, such as briefings by advisors, do not have the same status.”

He also warned the court that “these are delicate times” and that it should not become involved with international negotiations. He also argued that “the Government’s robust position has borne fruit and led to the re-opening of negotiations,” adding that they had “reignited” the process.

After a brief discussion, Lord Carloway, the President of the Court of Session, announced that the three judges would deliver their verdict tomorrow morning. The court could reject the petition, uphold it and send the letter (perhaps signed by the Speaker of the House of Commons), or put the case on hold until 19 October then see what action, or lack of it, the Government takes.

We’ll find out soon. 

Main photo: Jolyon Maugham QC

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