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A group of three litigants – Dale Vince OBE, the environmentalist and businessman, Jo Maugham QC and Joanna Cherry QC, MP – have today issued proceedings against the Prime Minister in the Inner House of the Court of Session, Scotland’s highest Court, to compel him to comply with his legal obligations under the ‘Benn Act’ to send a letter to the European Union asking for an extension to Article 50.
The legal proceedings [See Note 2], which are issued personally against Boris Johnson, follow Johnson’s repeated indications that he would not comply with the law passed by the United Kingdom Parliament in the European Union (Withdrawal) (No. 2) Act 2019 (the so-called Benn Act). Examples of those indications are set out in the affidavit sworn by Jolyon Maugham QC [See Note 1].
The Petitioners wrote to Johnson earlier this week asking him to give a formal undertaking to the Court that he would comply with his obligation to send a letter to the European Union asking for an extension – but no such undertaking was given.
The proceedings have been issued in Scotland because the Inner House has a power not possessed by the English Courts – its nobile officium – which would allow it to sign the letter mandated by the Benn Act if the Prime Minister refuses to do so.
Jolyon Maugham QC said:
“The Inner House of the Court of Session has a special and versatile jurisdiction – its nobile officium – which it can use to, in effect, per procurationem (ie ‘pp’) any letter that the Prime Minister refuses to send.
“The rule of law is not a thing to be grifted – not even by the Prime Minister.
“We expect that the Inner House will be mindful of the deadline set out in the Benn Act, and will deal with the matter speedily.”
Posting on his Facebook page (facebook.com/dalevince) earlier today, Dale Vince wrote:
“This would prevent a ‘no deal’ exit by default on October 31st and make the PM abide by the letter of the law in the Benn Act – which he’s suggested time and time again he’s prepared to ignore.
“For months I’ve watched in horror at what’s going on – it feels like we’re on the verge of law and order breaking down in our country. A no-deal Brexit will cause enormous national harm and would be illegal, so we hope the court will order Boris Johnson must abide by the law.
“Over the years, I’ve personally been on the receiving end of injunctions that stopped legitimate protests from taking place, so it must be possible to prevent serious law breaking by the PM in the same way. As crazy and ironic as this whole situation sounds – it’s where we are.”
Vince, Maugham and Cherry have instructed the same legal team that won the landmark ruling in the European Court of Justice that the United Kingdom could unilaterally revoke Article 50 and won yesterday’s case in the Inner House of Scotland’s Highest Court that the suspension of Parliament was unlawful. The legal team comprises Aidan O’Neill QC, David Welsh and Sam Fowles, instructed by Elaine Motion of Balfour + Manson.
The costs of the proceedings will be born by Dale Vince, OBE. Mr Vince will also fund two Fellowships at Good Law Project who will work in the sphere of strategic litigation with a particular focus on environmental litigation.
(1) The Affidavit of Jolyon Maugham QC can be seen here.
(2) The Petition against the Prime Minister can be seen here.