Lord Pentland, sitting in the Outer House of the Court of Session, has dismissed the petition of Joanna Cherry QC MP and others to oblige the Prime Minister to seek a Brexit extension under the terms of the European Union (Withdrawal) (No. 2) Act 2019, passed with the intention of preventing the UK leaving the European Union without a deal on 31 October. According to the BBC report, Lord Pentland said that “There can be no doubt that the first respondent [the PM’s legal team] now accepts that he must comply with the requirements of the 2019 Act and has affirmed that he intends to do so.” The Press Association report added:
“Having regard to the Prime Minister’s and the Government’s unequivocal assurances before the court in the pleadings, in the note of argument and in oral submissions that they will comply with the 2019 Act, I am not persuaded that it is necessary for the court to grant the orders sought or any variant of them.
I am not satisfied that the petitioners have made out their case based on reasonable apprehension of breach of statutory duty on the part of the Prime Minister.”
One of the petitioners, Jo Maugham QC, has said that the decision will be appealed.
Also according to the BBC, the Court of Session will consider later this week whether it has the power itself to sign and send a letter requesting a Brexit extension if the Prime Minister does not do so.
Update: the decision is now available on the Scottish Courts website, here.
There is a presumption in Equity, I believe, that what ought to be done is done. If that is so, could the EU move to grant an extension whether or not the necessary Letter is written?
I doubt it – though the technicalities of Article 50 are not my speciality (nor is EU law). Surely if the EU did so of its own motion, the UK Government would simply disregard it.