Court to Rule if Boris Can Be Jailed for Refusing to Delay Brexit

British Prime Minister Boris Johnson speaks during the 74th session of the United Nations
JOHANNES EISELE/AFP/Getty Images
Victoria Friedman

A Scottish judge could force Prime Minister Boris Johnson to request a Brexit extension or face a fine or imprisonment.

The legal bid has been launched by anti-Brexit campaigner Jolyon Maugham QC and member of the leftist Scottish Nationalist Party (SNP) Joanna Cherry. Both were involved in the successful Supreme Court challenge against the government over the suspension of parliament last week. The case is being funded by millionaire green energy industrialist Dale Vince.

Lord Pentland, an Outer House judge, will hear the case at the Court of Session in Edinburgh on Friday. He will rule whether it should be moved to the senior part of the court, the Inner House, on Monday according to The Scotsman.

Last month, the British parliament passed a law, the Benn Act, which forces the prime minister to seek an extension of Article 50 to the end of January 2020 if he fails to pass a deal in the Commons by October 19th. The law also prevents Boris Johnson from taking the UK out of the EU without an agreement on October 31st.

However, Remain activists fear that Johnson’s team will exploit loopholes in the law and deliver Brexit on October 31st, as the prime minister has pledged “without or without a deal”. Last week, a Downing Street spokesman said that the government “will comply with the law, but we are leaving on 31 October”.

The Guardian reports that the Court of Session is unique amongst British courts in that it has the power to take action if someone refuses to do something that they are ordered to do.

The petitioners want the Scottish judges to force the prime minister to request the extension and consider fining or imprisoning Boris Johnson if he refuses. According to the legal papers, if the prime minister “fails, delays or refuses to sign the letter required of him by the European Union (Withdrawal) (No.2)) Act 2019 [the Benn Act]”, the court should “impose such other conditions and other penalties including fine and imprisonment”.

The court may also bar the prime minister from asking EU leaders to veto the extension and order a clerk of the court to write to Brussels asking for an extension.

Whether or not the anti-Brexit campaigners are successful, it would likely result in another Supreme Court battle in the weeks before the UK’s scheduled exit of the European Union on October 31st.

Here is the wording of the legal document as reported by The Scotsman:

The papers stated: “To interdict the Prime Minister and any other minister of the Crown in right of the United Kingdom and anybody acting on their behalf or at their request from withdrawing, cancelling or otherwise undermining the effect of any letter sent in accordance with section 1 (4) for the European Union (Withdrawal) (No.2) Act 2019;

“In the event that the Prime Minister fails, delays or refuses to sign the letter required of him by the European Union (Withdrawal) (No.2)) Act 2019 and in accordance with this court’s order for the specific performance of the Prime Minister’s statutory duties to make orders to the following effect in the exercise of this court’s nobile officium; a) ordaining that a letter in the form set out in the schedule to the European Union (Withdrawal) Act 2019 to be drawn up and signed by the clerk of court on behalf of the Prime Minister b) ordaining that a letter so signed be sent to the President of the European Council.

“To impose such other conditions and other penalties including fine and imprisonment, where consistent with the European Union (Withdrawal) no.2 Act 2019 as to the court shall in all the circumstances seem proper and appropriate in the event of the order not being implemented.”

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