Anti-Brexit campaigners are to renew their bid for a court order to force Boris Johnson to seek an extension to article 50 if he fails to get a Brexit deal through the Commons next week.
The three campaigners – green energy entrepreneur Dale Vince, director of the Good Law Project, Jolyon Maugham QC, and the SNP MP Joanna Cherry QC – lost their first attempt to win a court order against the prime minister on Monday.
Lord Pentland, an outer house judge in the court of session in Scotland, ruled the courts had to trust promises made by the UK government last Friday that Johnson would uphold the Benn act’s provisions and not try to undermine them.
The European Union (Withdrawal) (No 2) Act, known as the Benn act, requires Johnson to write to the EU asking for an extension until 31 January if he fails to get a Brexit deal agreed at Westminster by 19 October.
Pentland refused to grant the three applicants an interdict, or injunction that would force Johnson to obey the act, after the government told the court in writing Johnson accepted “he cannot act so as to prevent the letter requesting the specified extension in the act from being sent.”
The judge said his decision was reached “on the basis that it would be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the crown for the prime minister or the government to renege on what they have assured the court that the prime minister intends to do.”
On Tuesday the campaigners’ lawyers will appeal against Pentland’s decision to three judges – the lord president Lord Carloway, Lord Brodie and Lord Drummond Young – sitting in the senior inner house of the court of session.
The lawyers are expected to argue Pentland was wrong to set aside substantial evidence the government was actively planning to thwart the Benn act. Speaking after Pentland’s ruling, Maugham said the appeal was based on one key question: “Whether the court is right to expect the prime minister to comply with the law.”
They will reinforce that argument by also asking the judges to consider taking control of the process by using unique powers available to the inner house, known as nobile officium, which empowers judges to take action in a situation where a remedy is needed.
In an unprecedented move, Aidan O’Neill QC, the campaigners’ advocate, will ask the court to use their nobile officium powers to write the letter required under the Benn act on Johnson’s behalf if he fails to do so in time.
Last Friday, lawyers for the advocate general, the UK government’s Scottish law officer, failed to get that application thrown out.
Drummond-Young said the case was unique but it had to be heard soon to ensure it could be properly dealt with, since it was likely to be appealed at the UK supreme court by whichever side loses. The courts had very little time to deal with this, given Brexit day was due on 31 October, he said.
To the campaigners’ surprise, Pentland ruled that statements by the prime minister and Downing Street officials that the UK would still leave the EU on 31 October regardless of the Benn act were political statements. Pentland also said the applicants had not proven that Johnson would breach the act by subverting it.
At a key point in Friday’s hearing, O’Neill told Pentland that the BBC had just quoted a Downing Street source arguing the Benn act’s “very specific narrow duty” did not prevent the government from “other communications, private and public” arguing against any delay.
O’Neill told the court this was evidence of the government’s “spin, misunderstanding and misinterpretation” of the act. It was proof, he said, that No 10 could not be trusted to honour the promises that government lawyers had given the court.
• This article was amended on 8 October 2019 to correct the names of two of the judges. An earlier version mistakenly said lords Menzies and Turnbull would hear the appeal, rather than lords Carloway and Brodie.
