8th October 2019
“The Advocate General has set out clearly and unequivocally the Prime Minister’s intention to comply with his statutory duties under the 2019 Act.
“This has been done so by way of detailed and specific averments in written pleadings put before the court on the professional responsibility of those acting for the Prime Minister and the government and with the express authority of the Advocate General for Scotland; he himself is, of course, an officer of the court.
“The Prime Minister and the government having thus formulated and presented to the court their considered legal position, there is no proper basis on which the court could hold that they are nonetheless liable to fail to do what they have in effect undertaken to the court that they will do.”
These 128 words are chilling for the UK government
What the judge has done is to make it that if the government breaks these averments then it will be a serious professional matter for Lord Keen, the Advocate General and the UK government’s chief law officer for Scotland, and it will also have severe other legal consequences – as if the government had broken an undertaking or a court order.
(The Advocate General is the Scottish counterpart to the Attorney-General in the jurisdiction of England and Wales.)
Put succinctly: if the government breaks the averments then Lord Keen could be thrown out of the profession, and the government would itself face sanctions.
Lord Keen is now obliged to ensure the UK government keeps its promises to the court.
And here it is significant that the judge is Lord Pentland.
He is himself a former Scottish law officer, as Solicitor-General for Scotland in the Major Conservative government.
As a former law officer, Lord Pentland knew exactly what professional button to press and, although the UK government did not give a formal undertaking, the averments have been taken to be just as firm – and just as consequential if breached.
The averments that the government will comply with the Benn Act, and (as importantly) will do nothing to frustrate the Benn Act, are serious words with serious consequences.
The case is being appealed – and it may be the appeal judges impose an order out of prudence.
And some Brexiters may welcome an order, as something to blame.
But what Lord Pentland has done is avoid an order and instead made Boris Johnson’s promises matter just as much as if an order was made.
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