Three judges at Scotland’s highest civil court ruled today there was currently no basis on which they could grant either of the pro-Remain campaigners’ requests, and that ordinarily, they would have been refused.
But in their statement, the judges added that the political debate must be played out before they could make any final decision. The case has now been continued 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 continued: “The court can only intervene if there is a demonstrable unlawfulness which it requires to correct. There has been no such unlawfulness.”
Under the terms of the Benn Act, which was passed by opposition MPs last month, Mr Johnson must request a Brexit extension in 10 days’ time if no deal has been agreed between the UK and the EU.
SNP justice spokeswoman Joanna Cherry, QC Jo Maugham, and millionaire businessman Dale Vince pursued a petition at the Court of Session with the intention of forcing Mr Johnson’s administration to respect the Benn Act and not circumvent it.
Ms Cherry claimed the decision sent “a clear signal the court will keep a watch on Boris Johnson’s actions”.
The Prime Minister and his Cabinet have repeatedly said the UK will leave the EU by the end of October, with or without a deal.
In a statement, Mr Maugham 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.
“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.”
Mr Vince said: “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 October 19.
“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 October 31 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.”
Ms Cherry said: “This decision is a victory for the petitioners and everyone who wants the Tory government to obey the law, and call for an extension, so we can avoid a devastating no-deal Brexit.
“As a result of this vital court action, the Tory government has been forced to concede the Prime Minister will comply with the law, and promise to send a letter requesting a Brexit extension. Crucially, he has also had to admit that he will not frustrate the purpose of the Benn Act.
“The Court’s decision is a clear signal it will keep a watch on Boris Johnson’s actions - and is holding a Sword of Damocles over him in case he breaks his promise.
Meanwhile, ministers are preparing to summon MPs for a special Saturday sitting of the UK Parliament following next week’s crucial EU summit.
Government sources said MPs were expected to be called back to Westminster on October 19 regardless of whether Boris Johnson has been able to secure agreement on a Brexit deal.