They have delayed their ruling until October 22, days after the parliament’s deadline to reach a Brexit divorce deal, and days before the United Kingdom is due to crash out of the EU by automatic operation of law on October 31.
Under legislation known as the Benn Act, passed with the assistance of a “rebel alliance” of Conservative MPs – who were subsequently sacked from the governing party – the prime minister is obliged to request a delay if no withdrawal deal is agreed between the UK and the EU by October 19.
The European Council of the heads of EU nations is set to meet on October 17 and 18.
The prime minister and his aides have repeatedly implied they would not comply with the law, leading to fears among those seeking to avoid a “no-deal” Brexit – which many economists, healthcare administrators, infrastructure leaders and other experts say would be disastrous for the UK economy and global standing – as well as those concerned for the rule of law in one of the world’s oldest parliamentary democracies.
“This is a state of affairs which seems to us to be highly likely,” read a statement from the campaigners who brought the legal case in Scotland.
“Only last night, for example, the president of the European Parliament stated that Boris Johnson had told him he would not be asking for an extension. If Boris Johnson was telling the truth, this would be a breach of his obligations to send the letter under the Benn Act. And if Boris Johnson was not telling the truth, this would, it seems to us, be a breach of his obligations not to frustrate the Benn Act.”
But in a submission to the court in a previous case last week, the government formally pledged to abide by the Benn Act – the total reverse of what cabinet ministers have been saying in public.
Campaigners had therefore lodged a bid at the Court of Session in Edinburgh to use the Nobile Officium – or “Nob-Off” – power, which would allow a court official to send a letter to the EU requesting a delay on Johnson’s behalf if he were to refuse.
In the court in Edinburgh on Tuesday, the government argued it had already undertaken to follow the law. Furthermore, its lawyers said, the deadline for a deal had not yet been reached, and so it would be inappropriate for the court to pass judgment at this time.
Campaigners argued that leaving a ruling until after October 19 would cause “massive” legal uncertainty; to wait until the deadline had passed would spark serious administrative and practical obstacles to enacting a legal remedy ahead of Britain leaving the EU without a deal on October 31.
But they say they are happy with the court’s announcement on Wednesday morning.
“These cases are about keeping the prime minister on the straight and narrow,” said Jolyon Maugham QC, one of the senior lawyers bringing the case.
“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. And the courts are likely to make good any failure on his part, including signing the Benn Act letter.”
Media reports overnight on Tuesday suggested the EU was preparing to make significant concessions over a northern Irish “consent mechanism” in Johnson’s latest plan.
Johnson’s idea is pinned on the UK’s suggestion to have two borders around Northern Ireland – turning the existing (invisible) border with the Republic of Ireland, an EU member, into a formal customs border (albeit with physical checks and infrastructure some distance from the border itself), with a regulatory border in the Irish Sea, allowing Northern Ireland to remain in the EU’s “single market”.
But EU officials quashed those reports on Wednesday morning, saying there was “no bold new offer” coming from their side, with diplomats dismissing the reports as “spin”.
The European Union’s chief Brexit negotiator, Michel Barnier, said on Wednesday he believed that reaching an exit deal with Britain was “very difficult but possible”.
“The EU will remain calm, vigilant, respectful and constructive. The technical talks continue,” Barnier said in footage played by Sky News on Twitter.
Asked by a reporter if a deal was possible, he said: “I think the deal is possible. Very difficult but possible.”