Court delays decision on forcing Johnson to seek Brexit extension

LONDON • Anti-Brexit campaigners claimed victory after Scotland's highest court decided yesterday to wait before ruling whether to force Prime Minister Boris Johnson to seek a delay to Britain's European Union divorce date if he has not struck a deal in the next 10 days.

An alliance of rebels in Mr Johnson's Conservative Party and opposition lawmakers voted through a law, known as the Benn Act, last month which requires him to ask for a Brexit delay if there is no deal in place by Oct 19.

The chances of any agreement with the EU by next week appear slim at the moment, with Irish Prime Minister Leo Varadkar saying there were big gaps between the sides.

Mr Johnson has said Britain will leave the bloc on Oct 31 as scheduled and that he would rather be "dead in a ditch" than ask for any further delay. However, he has also said he would not break the law, without explaining that apparent contradiction.

This week, anti-Brexit campaigners asked Scotland's Court of Session to issue an order stating Mr Johnson must abide by the Benn Act and to send a letter to the EU on his behalf if he refused to do so himself, using a power known as "nobile officium".

The court said normally it would have rejected the challenge, and indicated it was reluctant to see judges brought into the ferocious Brexit debate.

"The court may only interfere in that debate if there is demonstrable unlawfulness which it requires to address and to correct," one of the three judges said.


"At present there has been no such unlawfulness." But they said they had decided to delay consideration of the case until Oct 21, after the date Mr Johnson will have had to ask for an extension if no divorce deal had been agreed.

"It is clear that there will be changes in circumstances over the next 10 days," the ruling said.

Government lawyers had told the court that Mr Johnson accepted that he must carry out the requirements of the Benn Act, even though he has publicly rejected asking for any further delay.

"We have extracted from him a promise that he will comply with the law," said Mr Jo Maugham, a tax lawyer who was one of those behind the Scottish case. "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 Johnson yesterday said he was still cautiously optimistic about a deal. "We've been also negotiating with our friends and partners in the EU about Brexit and you know I'm still cautiously, cautiously optimistic," he said.


A version of this article appeared in the print edition of The Straits Times on October 10, 2019, with the headline 'Court delays decision on forcing Johnson to seek Brexit extension'. Print Edition | Subscribe