Anti-Brexit campaginers celebrated after a panel of three senior judges at the Court of Session in Edinburgh have decided to wait on a ruling until October 21, which is after Boris Johnson attends the EU Summit and holds a special sitting in Parliament. Waiting on a decision means the Prime Minister will be negotiating and threatening a no deal Brexit during discussions without knowing the courts decision.
Tom Newton Dunn tweeted: “Scottish appeal judges have deferred their ruling on whether to issue a court order to enforce the Benn Act until October 21.
“In other words, a legal sword of Damocles over Boris Johnson’s head if he doesn’t request and accept an A50 extension.”
Severin Carrell the Guardian’s Scotland editor tweeted: “Lord Carloway says the court will resume hearing on Monday 21 October to issue urgent ruling vs Boris Johnson if needed – court holding a loaded pen at Johnson’s head.”
Jo Maugham, a tax lawyer who was one of those behind the Scottish case, said: “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.”
Remainers had sought an order from the court to force Mr Johnson to ask the EU for a delay if he has failed to secure a deal by October 19 and send the letter to the European Union on behalf of the Prime Minister if he refused to do so himself.
But campaigners lodged an appeal against this decision.
Number 10 has been accused of submitting documents to the court which contradict the Prime Minister’s public statements, such as the UK will leave the EU “do or die” on October 31.
The latest legal action – led by Remainers SNP MP Joanna Cherry, businessman Dale Vince, and Jolyon Maugham QC – sought an order requiring the Prime Minister to send a request for an extension and another which would allow an official to do so if he does not.
This unique tool is known as “nobile officium”.
But in the court hearing on Tuesday Government lawyer David Johnston QC argued the courts do not have the power to use it in these circumstances.
Aidan O’Neill QC, representing the petitioners, told the court: “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 October 31 – does not mean it will not comply with the terms of the Act.
Lord Carloway questioned whether the court’s decision could be put off until after the October 19 date outlined in the Act, but Mr Webster claimed this could hamper negotiations.