Scottish judges give Boris Johnson seven days to respond to Brexit legal challenge

Prime Minister Boris Johnson
Prime Minister Boris Johnson
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A panel of senior Scottish judges has given Boris Johnson seven days to lodge his response to a legal challenge that will attempt to force the Prime Minister to delay Brexit.

Lord Menzies, Lord Brodie and Lord Drummond Young ruled the Prime Minister has a week to lodge answers to a petition brought to the Court of Session by prominent pro EU campaigners.

SNP MP Joanna Cherry QC, English tax barrister Jo Maugham QC and businessman Dale Vince want the court to force Mr Johnson to send a letter to Brussels asking for an extension to Article 50.

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The legal move comes just days after the same court ruled the Prime Minister acted unlawfully in suspending Parliament.

It also follows the passing of legislation, brought by Labour MP Hillary Benn, that makes a so called no-deal Brexit illegal for the UK government to proceed.

It obliges Mr Johnson to ask for another delay to Britain’s departure from the EU in the event that an agreement cannot be struck at an EU Council meeting in mid October.

The petitioners have raised the action in Scotland because the Inner House, Scotland’s highest civil appeal court, has powers which are unavailable to their English counterparts.

This power, known as a nobile officium, would allow the court to sign a letter requesting an extension to Article 50 if Mr Johnson refused to do so.

The Remainers have personally named Mr Johnson in their petition after he repeatedly said that he would refuse to ask for an extension. He has said he would rather “die in a ditch” than push back the meaning date beyond 31 October.

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Legal papers lodged at the court state: “The first respondent has made repeated statements when holding the office of Prime Minister that he will, in the exercise of that office, disregard and disobey the law in all circumstances involving his being required (for the purposes of the European (Withdrawal) Act 2018) to see an extension of ‘Exit Day’ beyond 31 October 2019.

“The petitioners reasonably understand these repeated threats to include a refusal to obey any order from a court (including this court) requiring the specific performance of the statutory duties imposed on the office of the Prime Minister by the 2019 act.

“The petitioners therefore seek further orders from this court, in the event of any such refusal, in the exercise of its nobile officium to the following effect (i) ordaining that a letter in the form set out in the schedule to the European Union (Withdrawal) (No.2) Act 2019 be drawn up and signed to be sent to this court to the President of the European Council (ii) for this letter so signed to be sent to this court to the President of the European Council (iii) for a declarator that a letter in this form sent by the court shall substitute for, and shall be for, and shall purposes in law equivalent to, the letter, which the Prime Minister was and is under a statutory obligation to sign and send to the President of the European Council.”

The judges, who sit in the Inner House, made the ruling following a five-minute hearing at Scotland’s highest civil court today.

They were addressed by senior advocate Aidan O’Neill QC, the same lawyer who persuaded Court of Session judges this week that the prorogation of Parliament was unlawful.

Mr Johnson was not represented during the brief hearing.

Mr O’Neill told the court that his clients wanted to give Mr Johnson seven days to lodge answers to their petition.

He said that the court needed to hear the petition quickly because the UK was scheduled to leave the EU by the end of the month and it was extremely urgent.

Mr O’Neill added: “I could expand on why but I think it is self evident.”

The lawyer also told the court that after the Prime Minister’s answers would be lodged, the actual hearing would take a day to present to the court.

The judges then allowed the matter to progress.

Lord Menzies said: “We will grant your motion.”