Judges postpone decision on Brexit extension letter until after deadline

Boris Johnson faces the final battle of Brexit as MPs return to parliament. Photo: Anthony Devlin/Getty Images - Credit: Getty Images

Judges at Scotland’s highest civil court have delayed a ruling on the legal bid aimed to force Boris Johnson to send a letter requesting a Brexit extension if no withdrawal deal is reached by October 19.

The requirement for the prime minister to request a Brexit extension if no withdrawal deal is secured with the EU by October 19 is a key provision of the so-called Benn Act, passed by MPs in a bid to prevent a no-deal departure.

Campaigners had lodged an appeal at the Court of Session in Edinburgh after the dismissal of a legal action aimed at forcing Boris Johnson to request a Brexit extension if there is no deal by that date.

They also asked the Court of Session to use the unique power of “nobile officium” which would allow an official to send a letter on behalf of Johnson if he refuses.

However three senior judges said they would not make a ruling until October 21, after the deadline.

The judges said that at this stage there is no basis on which they could grant either of the campaigners’ requests and that ordinarily they would have been refused.

However they said that the political debate must be played out before any decision is made and continued the case so that campaigners do not have to start new proceedings if circumstances change.

Lord Carloway, lord president of the Court of Session, said: “Until the time for sending the letter arrives the prime minister has not acted unlawfully.

“If October 19 comes and goes without the act having been satisfied the petitioners would be entitled to return to court asking for the prime minister to have to comply with the act.

“The situation remains fluid. What is known is that over the next two weeks circumstances will change.”

He added: “The Court can only intervene if there is a demonstrable unlawfulness which it requires to correct. There has been no such unlawfulness.”

Jolyon Maugham QC, one of the petitioners, 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 courts are likely to make good any failure on his part, including signing the Benn Act letter.”

Businessman Dale Vince OBE added: “This result is not entirely unexpected to me. It gives the courts the chance to jump in if the prime minister breaks his word and doesn’t send the extension request by the 19 October.

“The idea of our prime minister failing to uphold the law should be ridiculous, it’s an unprecedented concept – but this is where we are. Boris Johnson has repeatedly said he will not seek an extension and the UK will leave the EU on the 31 of October come what may. It’s for that reason we asked the courts to intervene, to prevent the very real likelihood of the law being broken and great harm ensuing, to our whole country.”