Court holds loaded gun to Boris Johnson's head forcing PM's hand on Brexit extension

SCOTLAND'S highest court has been accused of "holding a loaded pen to Boris Johnson's head". The court postponed an immediate Brexit ruling - but it also became clear if the Prime Minister did not ask the EU for a Brexit delay in the event of a no deal they would reconvene for an emergency session.

The decision, while looking like a measured response and even backing away from furhter judicial involvement in political matters, actually implicitly forces Mr Johnson's hand. Anti-Brexit campaginers celebrated after the panel of three senior judges at the Court of Session in Edinburgh decided to wait on their 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 court's decision. 

Sun political editor 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.”

brexit court case

Brexit court case: Boris Johnson could be forced to delay Brexit (Image: GETTY )

Brexit court case

Brexit court case: Remainers campaign outside the Court of Sessions (Image: GETTY )

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."

Reacting to the decision, professor of EU, Human Rights and World Trade Law at the University of Essex Steve Peers, said: "Today’s decision of the Court of Session to put on hold proceedings related to the enforcement of the Benn Act makes sense, because any breach of the government’s obligation to request an extension of the EU membership under the law could not take place until October 19.

"But the Court sensibility took the view that it should remain seised of the case in the event that it has to act quickly in the event of a breach by the government, leaving a sword of Damocles hanging over any attempt at unlawfulness by the Prime Minister." 

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.

SNP MP Joanna Cherry, who is behind the legal action, posted on Twitter: "Delighted to advise Scotland's Supreme Court is holding off ruling on whether to force @BorisJohnson to send Brexit extension BennAct letter until 21 Oct to give PM time to fulfill the promise he made to the court.

READ MORE: Brexit LIVE: No deal chaos as FIVE Cabinet ministers plan to resign 

Brexit court case

Brexit court case: Jolyon Maugham QC is behind the latest legal action (Image: GETTY )

"A victory for us & all our supporters."

The requirement for Mr Johnson to request a Brexit extension if no withdrawal deal is secured with the EU by October 19 is a key provision of the so-called Benn Act, passed by MPs in a bid to prevent a no-deal departure.

The hearing comes after Judge Lord Pentland ruled on Monday that there was “no doubt” Mr Johnson would comply with the terms of the Benn Act after he gave “unequivocal assurances” to the court.

But campaigners lodged an appeal against this decision.

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Brexit court case

Brexit court case: Campaigners hailed the case as a victory (Image: GETTY )

Brexit court case

Brexit court case: Solicitor Elaine Motion speaks on behalf of anti-Brexit campaigners (Image: GETTY )

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”.

brexit court case

Brexit court case: Britain is due to leave the EU on October 31 (Image: EXPRESS)

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.