Since the passage of the European Union (Withdrawal) (No.2)
Act 2019 – known as the Benn Act – there has been public debate about the
precise scope of its provisions, and whether the Prime Minister intended to
comply with the requirement of the Act to send a specified statutory letter to
the European Council seeking an extension of the UK’s membership of EU on 19
October 2019 if the statutory pre-conditions were met.
Legal proceedings were launched in Scotland, Northern
Ireland and England and Wales seeking declarations and other orders to compel
the Prime Minister to comply. In the Prime Minister’s pleadings in all three
jurisdictions, it was made clear that the Prime Minister would comply with the
obligations imposed by the Act should he be required to do so. He also accepted
the application of the public law principle of frustration, albeit affording
that principle a narrower scope. In the light of the Prime Minister’s pleaded
position, the Outer House of the Court of Session dismissed the claim for
relief, and the Inner House rejected an appeal, but adjourned the proceedings
in case it proved necessary to consider any particular factual scenario which
arose. Proceedings in Northern Ireland were stayed by consent.
In R (Liberty) v Prime Minister, an application for
an urgent rolled-up hearing during the early part of the week of 14 October
2019 was rejected by Supperstone J. Liberty appealed that refusal to the Court of
Appeal, arguing that it was essential that a hearing consider the scope of the
frustration principle, in the light of the Prime Minister’s pleaded position,
in advance of knowing whether or not it would prove necessary to send the
statutory letter on 19 October. That contested application was heard by a Court
of Appeal comprising the Lord Chief Justice, the Master of the Rolls and the
President of Queen’s Bench Division on Friday 18 October 2019. The Court
rejected the application orally, with reasons to follow.
Those reasons are now set out in R (Liberty) v Prime
Minister [2019] EWCA Civ 1761. The judgment sets out the concerns of
Liberty and the pleaded position of the Prime Minister. It records that by the
time of Supperstone J’s refusal, the Scottish courts were fully appraised of
the same material issues and had adjourned to reconsider developments on 21
October. The Court of Appeal gives clear guidance that parallel proceedings
raising the same points should not ordinarily be permitted in multiple jurisdictions
of the United Kingdom, and that it would have been inappropriate for the Judge
to list an urgent hearing in England and Wales when the matter had already been
addressed in Scotland.
Christopher Knight acts for the Prime Minister in various of the challenges concerning the Benn Act, including Liberty. The judgment of the Court of Appeal may be read here.
