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.
