Legal bid could empower Scottish court to extend Article 50 on Boris Johnson’s behalf

SNP MP Joanna Cherry (right), alongside Jolyon Maugham QC, with campaigners outside Court of Session in Edinburgh, after winning their earlier legal bid. Picture: Lucinda Cameron/PA Wire/PA Images - Credit: PA Wire/PA Images

Boris Johnson is facing a new legal action to ensure the law is not ‘grifted’ by empowering a Scottish court to request an extension to Article 50 if he refuses to do so himself.

The bid has been launched by Ecotricity entrepreneur Dale Vince with Jo Maugham QC and Joanna Cherry QC MP, following suggestions that the government might break the law by not implementing the anti no-deal Benn Act.

If they win, the Scottish courts would be empowered to sign an extension request letter in the prime minister’s stead.

Johnson has continued to state publicly that the UK will leave the EU on October 31 “deal or no deal”, despite the fact that the Benn Act legally obliges him to either secure a deal by October 19 or request an extension.

The legal proceedings, which are issued against Johnson personally, follow many other indications that he intends to defy the law, including refusing to respond to a formal request for a statement from Maugham, Cherry and Vince.

On his ‘People’s PMQs’ Facebook live as recently as Wednesday, Johnson responded to a question asking if the UK will leave “deal or no deal” on October 31 by saying: “I’m delighted to confirm it again.”

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.

The case follows another win for Cherry’s side after the Court of Session established that Johnson had acted unlawfully in proroguing parliament, a finding that will be appealed in the High Court next week.

MORE: Boris Johnson broke the law suspending parliament, Scottish court rulesThe three litigants have instructed the same legal team who won this case and who also won the landmark ruling that the UK can unilaterally revoke Article 50.

The legal team comprises Aidan O’Neill QC, David Welsh and Sam Fowles, instructed by Elaine Motion of Balfour + Manson.

Maugham, a vocal Brexit skeptic who leads the crowdfunded Good Law Project, 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.”

Dale Vince, who is paying the legal fees, told the New European that he was spurred to launch the legal action in response to the threat of a no-deal Brexit.

“It’s just so wrong, isn’t it,” he said. “The impacts would be severe, people may lose their lives over it – certainly there would be great hardship … there would be enormous impact on our economy. Not to mention the blight on the future of the young people of this country.”

Asked if he ever lost clientele from his Brexit stance, he said: “I don’t care actually. I won’t modify my behaviour for some sort of economic game to keep everybody happy. That’s a cheap way to behave – I am who I am.”

He clarified that despite his aversion to Brexit overall, it was particularly a no-deal scenario he was seeking to avoid. “It’s not just Brexit but a no-deal Brexit for political expediency,” he said. “That’s just wrong, and I wasn’t prepared to sit around and watch it happen.”