Court delays decision on Brexit extension letter

18:16 09/10/2019 |

A Scottish court has delayed a decision on whether to sign a letter requesting a Brexit extension if Boris Johnson refuses to do so.

Campaigners asked the judges to agree to enforce legislation passed by MPs aimed at preventing a no-deal exit.

The Benn Act requires Boris Johnson to ask EU leaders for a delay if a deal has not been agreed by 19 October.

Judges at the Court of Session said they could not rule on the matter until the political debate has “played out”.

The court will sit again on 21 October to assess how circumstances have changed by then.

A previous court opinion had said there was “no doubt” that the prime minister had agreed to abide by the law, but the campaigners claimed he could still look to “frustrate” the legislation.

The case has been brought by three petitioners – businessman Dale Vince, QC Jolyon Maugham and SNP MP Joanna Cherry.

They want the court to use its “nobile officium” power to, in effect, sign a letter to European leaders on behalf of Mr Johnson if the prime minister refuses to do so himself.

Mr Johnson has previously said he would “rather be dead in a ditch” than seek another delay beyond the current 31 October exit date.

‘Circumstances may change’

On Monday, Lord Pentland ruled that the UK government had accepted it would “comply fully” with the Benn Act, and that there was “no proper basis” on which the court could decide that it would not.

The Inner House panel of judges, led by Lord Carloway, agreed with this ruling – but said that “circumstances may change over the next ten days”.


They said that “the political debate must be played out”, and that they would reconvene after the deadline set down in the legislation to decide on the next steps.

Ms Cherry said the delay was a “victory” for her side, and that the judges had “given the prime minister time to fulfil the promise he made to the court”.

What is the nobile officium?

The procedure of petitioning the nobile officium is unique to Scots law, but is far from being a forgotten backwater of the legal system.

Its name is a Latin term meaning the “noble office”.

The procedure offers the opportunity to provide a remedy in a legal dispute where none exists.

In other words, it can plug any gap in the law or offer mitigation if the law, when applied, would be seen to be too strict.

In this case, it would see an official of the court sign a letter to the EU requesting a Brexit extension, as set out in the Benn Act, should the prime minister refuse to.

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BBC News – UK

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