Analysis: A Scottish court trusts Boris Johnson will stick to the law

A protester outside the Court of Session in Edinburgh. Picture: Andrew Milligan/PA Wire
A protester outside the Court of Session in Edinburgh. Picture: Andrew Milligan/PA Wire
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It could be said that Brexit is turning into something of a courtroom drama. It’s a long-running series with plot twists galore. But no one is quite sure how it will all end.

The latest episiode saw the SNP’s justice spokeswoman, Joanna Cherry, join forces with fellow QC Jo Maugham and pro-Remain businessman Dale Vince to try and persuade the Court of Session that legal force was required to ensure the UK Government sticks to the terms of the Benn Act.

Regular viewers of this Brexit drama will, of course, know the Benn Act refers to legislation passed last month by opposition MPs, with the specific aim of ensuring the UK Government will request an extension to Article 50 if a deal with the EU is not agreed by October 19.

Boris Johnson dubbed the bill “the Surrender Act”. It’s safe to say he’s not a fan.

READ MORE: Can a Scottish court order Boris Johnson to be imprisoned?

The petitioners’ case rested on what Mr Johnson, and members of his Cabinet, have said publicly on the timing of Brexit. They have repeated the mantra that the UK will be out of the EU by November 1, with or without a deal.

Many opposition MPs and anti-Brexit campaigners have interpreted this as a threat to ignore the Benn Act - or at least find a loophole that would allow the UK Government to circumvent it.

The petitioners wanted the Court of Session to in effect tell Mr Johnson that he better stick to the Benn Act - or face the legal consequences.

Some even suggested that we could see a serving PM locked up for deliberately breaking the law.

The first big twist of this particular episode was the submission to the court on Friday by the UK Government, which said it fully intended to respect the Benn Act.

In his ruling issued today, Lord Pentland took the view that the court must take the UK Government’s assurances at face value. Mr Johnson’s administation had accepted it must “comply fully” with the act and would not seek to “frustrate its purpose”.

As a result, he said there was “no proper basis” on which the court could decide that the government would fail to deliver on that undertaking.

The public statements made by Johnson and his cabinet were were an expression of its “political policy” and were “clearly not intended to be taken as conclusive statements of the government’s understanding of its legal obligations”.

But the petitioners are not too downhearted. Speaking after the ruling today, Ms Cherry claimed the petitioners had “forced the Tory Government to concede that the Prime Minister will comply with the law”.

She added: “However, given Boris Johnson’s slippery track record of acting unlawfully, and the contradictory statements issued by the UK government - we do not trust the Tory leader or believe he can be taken at his word to obey the letter and spirit of the law.”

Tune in again on Tuesday, where the Court of Session will hear the appeal.