Brexit: Benn Act petition dismissed by Court of Session

SNP MP Joanna Cherry outside the Court of Session in Edinburgh on Friday. Picture: Andrew Milligan/PA Wire
SNP MP Joanna Cherry outside the Court of Session in Edinburgh on Friday. Picture: Andrew Milligan/PA Wire
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A legal challenge aimed at forcing Boris Johnson to request a Brexit extension if a deal is not reached by October 19 has been dismissed by the Court of Session.

The petition, brought at the Outer House of Scotland’s highest civil court, sought to ensure the Prime Minister abides by the statutory responsibilities laid down by the Benn Act, which was passed by opposition MPs last month in order to prevent the UK from crashing out of the EU with no deal.

Mr Johnson has repeatedly said the UK will leave the EU “come what may” by October 31.

But in a written decision issued today, judge Lord Pentland said both the Prime Minister and the UK Government had given “unequivocal assurances” that they would comply with the Benn Act.

He cited documents submitted to the Outer House which show Mr Johnson accepts he must send a letter to the EU requesting an extension to Article 50 under the terms of the so-called Benn Act.

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The Outer House of the court ruled that the case against the Prime Minister had not been “based on reasonable apprehension of breach of statutory duty”.

Lord Pentland said: “Having regard to the Prime Minister’s and the Government’s unequivocal assurances before the court in the pleadings, in the note of argument and in oral submissions that they will comply with the 2019 Act, I am not persuaded that it is necessary for the court to grant the orders sought or any variant of them.

“I am not satisfied that the petitioners have made out their case based on reasonable apprehension of breach of statutory duty on the part of the Prime Minister.”

The petition was brought by SNP MP Joanna Cherry QC, Jo Maugham QC, and businessman Dale Vince, who funded the action.

An appeal against the ruling could be heard as soon as tomorrow.

Speaking outside the Court of Session, Jolyon Maugham QC said: “The court said it has promises from the Government that the Government will send the letter mandated by Parliament and will act in a way as not to frustrate Parliament’s intention in enacting the so-called Benn Act.

“For myself, I very much hope the court is right and the Government will, as it has promised to do, abide by the law.

“But there is very real doubt in my mind that the Government will act in accordance with the law and so tomorrow we will pursue our appeal against the decision of the Outer House to the Inner House of the Court of Session.”

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Orders sought by the legal challenge included stopping the Prime Minister from “frustrating” the will of the Act and mandating him to send the request.

Mr Johnson, Downing Street sources and Cabinet ministers have repeatedly asserted the country will leave on October 31 regardless.

However, documents submitted to the court on behalf of the Prime Minister on Friday revealed he accepted he must send the letter under the terms set out in the legislation.

It also shows Number 10 accepts it cannot attempt to “frustrate” it.

Andrew Webster QC, representing the UK Government, argued this should be enough for the court to be satisfied the Mr Johnson would comply with the legislation.

He added that imposing any orders could “ruin” the negotiating strategy with the EU.

Aidan O’Neill QC, representing the petitioners, claimed Mr Johnson’s previous statements go against what he has said to the court through the documents.

He referred to promises made by the Prime Minister that he would rather be “dead in a ditch” than send a letter requesting an extension, and that the UK will leave on October 31 “do or die”.

In a statement issued after today’s ruling, Mr Vince said: “The idea of our Prime minister failing to uphold the law should be quite ridiculous, it’s unprecedented - 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 31st of October with or without a deal, one way or another.

“For that reason we have asked the courts to intervene, to prevent the very real likelihood of the law being broken and great harm ensuing - this is the essence of an injunction, to prevent such a thing.”

He added: “I hope that tomorrow the senior court will rule in our favour, will make clear to Boris Johnson that he too must follow the law and that they will issue the extension letter if he does not.”