Was Boris Johnson’s Brexit extension tactic lawful?

Scotland’s highest court will hear allegations today that Boris Johnson acted unlawfully by urging EU leaders to ignore his request for a Brexit delay.

The prime minister sent an unsigned letter to Brussels on Saturday asking for an extension to the 31 October deadline, but attached a signed letter saying he believed any extension would be a mistake.

The Scottish Court of Session will consider whether Johnson attempted to frustrate the Benn Act - compelling him to request the extension - by asking that the extension request be ignored.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

One of the campaigners behind the action, Scottish National Party (SNP) MP Joanna Cherry, said: “It will be for the court to decide whether or not the prime minister has broken his promise to the court.”

The Government says it has fulfilled its legal obligations, the BBC reports.

What did the law make Johnson do?

The European Union (Withdrawal) (No 2) Act - known as the Benn Act - came into law on 9 September.

It required the PM to request a three-month extension to the Brexit deadline by 19 October if he couldn’t manage to get deal through Parliament - or get MPs to approve no-deal - by that date.

After losing a vote on a delay to his new Brexit deal during a special sitting of the House of Commons on Saturday, Johnson was legally compelled to send the letter to Brussels by 11pm that day.

However, while the PM sent the letter as required, he also attached a signed letter saying Parliament had forced him to make the request and asking the EU to ignore it.

–––––––––––––––––––––––––––––––For more political analysis - and a concise, refreshing and balanced take on the week’s news agenda - try The Week magazine. Get your first six issues free–––––––––––––––––––––––––––––––

What is the legal challenge against the PM?

Government lawyers said in court earlier this month that the PM would uphold the provisions of the Benn Act. But lawyers for pro-Remain campaigners are expected to say on Monday that Johnson’s actions broke those promises.

Government lawyers successfully objected to an application from anti-Brexit campaigners for an injunction forcing the PM to honour the Benn Act’s requirements.

Lawyers acting on behalf of Lord Keen, the UK government’s law officer for Scotland, had told the court that an injunction was unnecessary because Johnson accepted “that he is subject to the public law principle that he cannot frustrate its purpose or the purpose of its provisions”, says The Guardian.

The submission added that “the prime minister is subject to the law and, as would be expected of a minister of the crown, there is no question but that he will comply with the requirements of the law. He has repeatedly said so.”

Jolyon Maugham QC, one of the anti-Brexit campaigners who made the application, said it was up to Scotland’s most senior judge, Lord Carloway, and his fellow judges to decide whether they thought the court had been misled by the Government.

What does No. 10 say?

The Government has insisted that it honoured the legal requirements of the Benn Act, and will argue that the PM kept his promises to the court by sending the letter as compelled.

Government lawyers are expected to argue that sending an additional letter urging EU leaders to refuse an extension was not against the law.

Scotland’s Inner House of the Court of Session will consider the latest developments when it reconvenes in Edinburgh at midday.