Judges hear arguments in Brexit case

A UK government lawyer has told judges the courts would have to “deal with” what happens “in some way” if the prime minister breached an order to request a Brexit extension.

Campaigners 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 no withdrawal deal is secured with the EU by October 19, under the terms of the so-called Benn Act.

Judge Lord Pentland ruled on Monday it was not necessary to compel the prime minister to comply with the terms of the Act given “unequivocal assurances” of Johnson and the Government made before the court.

Number 10 has been accused of submitting documents to the court which contradict his public statements, such as that the UK will leave the EU “do or die” on 31 October.

The latest legal action – led by SNP MP Joanna Cherry, businessman Dale Vince, and Jolyon Maugham QC – is seeking an order requiring the prime minister to send the request and also another which would allow an official to do so if not.

Read on...

This unique tool is known as “nobile officium”, however government lawyer David Johnston QC argued the courts do not have the power to use it in these circumstances.

Johnston added: “If the prime minister were not to comply with an order, what happens then?

“I think I would have to accept that the court must be able to deal with that in some way.

“Whether nobile officium is the correct way, I have my reservations about that.”

EU supporters outside the Court of Session in Edinburgh
EU supporters outside the Court of Session in Edinburgh (Jane Barlow/PA)

It had been put forward that the court clerk would sign the letter request for the UK, in place of the prime minister.

However, Lord President of the Court of Session Lord Carloway said: “If we were granting an order, it wouldn’t be the court clerk. The responsibility might have to be at a higher level.”

He added: “That’s no offence to the court clerk.”

Aidan O’Neill QC, representing the petitioners, claimed the author of that signature could perhaps be the Speaker of the house of commons.

He also repeated claims that the Conservative Party leader could not be trusted to abide by the law due to his past statements.

O’Neill said: “One shouldn’t be taken in by any kind of shtick that the prime minister is an overgrown schoolboy playing at Just William and his band of outlaws.

“What I say to this court is, ‘When they go low, the rule of law goes high’.

“What we have in this application is an application to the effect should the government not comply with its duties, then this court, in order to preserve the rule of law, must itself authorise an individual to sign the letter and make the necessary declarations.

“It is an unprecedented step, but these are unprecedented times.”

Andrew Webster QC, also representing the government, argued any interference from the courts could hamper the UK’s negotiations with the EU.

He claimed its position on Brexit – that it wants to leave with or without a deal on 31 October – does not mean it will not comply with the terms of the Act.

Jolyon Maugham QC
Jolyon Maugham QC is one of those pursuing the legal action (Andrew Milligan/PA)

The court heard the legislation leaves room for a no-deal withdrawal, as long as parliament agrees to it.

Lord Carloway questioned whether the court’s decision could be put off until after the 19 October date outlined in the Act, but Webster claimed this could hamper negotiations.

Speaking after the hearing, Maugham said: “My guess is that they’re going to hold the matter over until October 21.

“I think they will want to see what actually happens before they get into this difficult territory.

“None of us want to have a prime minister who’s facing contempt of court proceedings.

“But if he doesn’t, then we face a genuine constitutional crisis and we will have to pick up the pieces then.”

A judgment is expected to be issued on Wednesday.

We need your help to keep speaking the truth

Every story that you have come to us with; each injustice you have asked us to investigate; every campaign we have fought; each of your unheard voices we amplified; we do this for you. We are making a difference on your behalf.

Our fight is your fight. You’ve supported our collective struggle every time you gave us a like; and every time you shared our work across social media. Now we need you to support us with a monthly donation.

We have published nearly 2,000 articles and over 50 films in 2021. And we want to do this and more in 2022 but we don’t have enough money to go on at this pace. So, if you value our work and want us to continue then please join us and be part of The Canary family.

In return, you get:

* Advert free reading experience
* Quarterly group video call with the Editor-in-Chief
* Behind the scenes monthly e-newsletter
* 20% discount in our shop

Almost all of our spending goes to the people who make The Canary’s content. So your contribution directly supports our writers and enables us to continue to do what we do: speaking truth, powered by you. We have weathered many attempts to shut us down and silence our vital opposition to an increasingly fascist government and right-wing mainstream media.

With your help we can continue:

* Holding political and state power to account
* Advocating for the people the system marginalises
* Being a media outlet that upholds the highest standards
* Campaigning on the issues others won’t
* Putting your lives central to everything we do

We are a drop of truth in an ocean of deceit. But we can’t do this without your support. So please, can you help us continue the fight?

The Canary Support us