Boris Johnson facing fresh legal showdown over Brexit delay letters

Posted On: 
21st October 2019

Scotland's highest court will consider whether Boris Johnson has fully complied with a law ordering him to ask the European Union for a Brexit delay.

Boris Johnson requested a Brexit extension on Saturday night.

In a fresh legal challenge to the Prime Minister, Scotland's most senior judge, Lord Carloway, will on Monday hear claims that Number 10 has failed to keep its pledge not to try and scupper the Article 50 extension request by sending multiple letters.

The Prime Minister dispatched an unsigned letter to Brussels on Saturday night asking for an extension.

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But he sent the request alongside a separate signed document arguing that any fresh delay would be a mistake, urging the EU to reject the "deeply corrosive" plans.

The move came after MPs beefed up an existing law which said Mr Johnson had to request a three-month Brexit delay if he had not managed to get a deal through the House of Commons by 19 October.

However, campaigners including the SNP's Joanna Cherry, who led a successful legal battle against Mr Johnson's earlier decision to prorogue Parliament, have argued that the PM's request falls short of Downing Street's own previous promises to the Scottish court.

Government lawyers told a hearing on the Benn Act earlier his month that Mr Johnson "cannot frustrate its purpose or the purpose of its provisions" and said there was "no question but that he will comply with the requirements of the law".

Ms Cherry said: "Despite his childish trick of not signing the letter and sending a contradictory covering letter, the EU, who are the grown-ups in the room, have accepted the request and are considering it.

"I am quite convinced that Boris Johnson would not have sought the extension had he not been forced by the court action to promise the highest court in Scotland that he would."

And she added: "Our legal team are also instructed to remind the court that, as well as promising to comply with the letter of the Benn Act, the PM also promised not to seek to frustrate the purpose of the legislation.

"It will be for the court to decide whether his actions in failing to sign the letter of request and sending a letter setting out his contrary intentions are in breach of the undertakings he gave them or a contempt of court."


Barrister Jolyon Maugham, who is joining the legal action alongside businessman Dale Vince, meanwhile said: "If the court takes the view that the Prime Minister had given undertakings not to send two letters and broken that undertaking, then he might be in contempt of court."

And he told the Telegraph: "I am not particularly interested in punishing anybody. I am more interested in ensuring that the law is complied with. If you give undertakings to the court and you breach those undertakings, the court will be profoundly unhappy and you will be in contempt of court."

But Lord Pannick, the QC who represented those challenging Mr Johnson's decision to shut down Parliament at the Supreme Court, said the PM had "just about" obeyed the law with his extension request.

"The act does not say, as it could have done, that the prime minister must use his best endeavours (language often seen in statutes) to achieve an extension," the crossbench peer wrote in The Times.

"In the absence of any such requirement, a court is not going to conclude that the act compels Mr Johnson to abandon his political objectives."