Most senior judge says court needs to ensure PM does not try to block Brexit extension

Scottish judges have delayed a final ruling on whether Boris Johnson is in contempt of court to ensure he agrees to an extension to Brexit.

Lord Carloway, the country’s most senior judge, said they needed to be sure the prime minister did not try to block or sabotage the application he was forced to make on Saturday night for an extension to Brexit until 31 January.

The court’s decision, issued after a short hearing at the court of session in Edinburgh, means Johnson faces being held in contempt if judges rule he has failed to honour pledges made to court not to frustrate the extension process.

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Johnson sent an unsigned letter seeking the extension after the Commons voted narrowly in favour of postponing a vote on the government’s revised deal to leave the UK.

The legislation, the European Union (Withdrawal) (No 2) Act, known as the Benn act, also requires the prime minister to accept an extension if it is offered by Brussels and the 27 other EU member states.

Elaine Motion, the solicitor for three anti-Brexit campaigners who took the case to court, said they feared he could try to thwart the process, perhaps by secretly asking an EU member state to veto the extension. If that occurs, they would immediately ask for the court to reconvene and consider contempt proceedings.

The three campaigners, Dale Vince, the owner of the energy company Ecotricity, Jolyon Maugham QC and the SNP MP Joanna Cherry QC, launched a legal action last month asking the court to enforce the Benn act provisions requiring Johnson to seek an extension if he failed to get a Brexit deal passed by 19 October.

Q&A What does the 'Benn act' say? Show Hide The EU Withdrawal (No 2) Act, often referred to as the Benn act, is a law that was passed by MPs in an attempt to prevent Boris Johnson's government leaving the EU without a deal. It specifies that by 19 October the government must have either secured a deal that parliament has approved, or secured explicit approval from parliament to leave without a deal. If neither of those conditions are met – and if Johnson cannot get his deal passed on 'super Saturday' – it requires the prime minister to write to the EU to ask for a further Brexit extension. The form of the letter that the prime minister must send is set out in full in the act. The act says the extension should last until 31 January 2020, or longer if the EU suggests. Here is the full text of the European Union (Withdrawal) (No 2) Act 2019 Martin Belam

They have sought interdicts, or injunctions, forcing Johnson to honour the Benn act and also asked the court to use its unique nobile officium powers to write that letter on the prime minister’s behalf if he failed to do so.

But Johnson could also fulfill the terms of the Benn act and avoid any further hearings of the legal challenge if he succeeds in getting a Brexit deal accepted and passed in the Commons and agreed by the EU in time to leave on 31 October.

Aidan O’Neill QC, the lawyer for the campaigners, told the court on Monday they accepted Johnson had met the first test of the Benn act by sending the extension letter but he said it remained far from clear whether he would act on an extension offer.

O’Neill said there was an open question whether the prime minister was already in contempt of court by sending a second, signed, letter to Donald Tusk telling the EU he did not believe an extension should be granted.

O’Neill read a transcript of undertakings by Andrew Webster QC, one of the UK government’s lawyers, to the court on 9 October where Webster agreed that sending a second letter that tried to undermine the extension request “would be inconsistent” with Johnson’s pledges in court to uphold the Benn act’s provisions.

“At the very least, those words seem to be a very close sailing to the wind,” O’Neill told the court. Carloway said Johnson’s letter to Tusk was “a very carefully written letter”.

Carloway, the lord president, sitting with Lord Drummond Young and Lord Brodie, rejected a request from the UK government’s lead lawyer, David Johnston QC, to throw out the legal action.

Johnston said the prime minister had clearly fulfilled his statutory duties and met his obligations under the Benn act. “There is no reason for these proceedings to continue,” Johnston said. “The normal course in such circumstances would be to refuse [the request to continue the case].”