SNP MP Joanna Cherry QC, English tax barrister Jo Maugham QC and businessman Dale Vince have launched a new action at the Court of Session, Scotland’s highest civil court.
The trio want the court to force Mr Johnson to send a letter to Brussels asking for an extension to Article 50.
The new 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 it illegal for the UK government from pursuing a so called hard Brexit.
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 October 31.
Legal papers lodged at the court state: “To interdict the Prime Minister and any other Minister of the Crown in right of the United Kingdom and anybody acting on their behalf or at their request from withdrawing, cancelling or otherwise undermining the effect of any letter sent in accordance with section 1 (4) for the European Union (Withdrawal) (No.2) Act 2019;
“In the event that the Prime Minister fails, delays or refuses to sign the letter required of him by the European Union (Withdrawal) (No.2) Act 2019 and in accordance with this court’s order for the specific performance of the Prime Minister’s statutory duties.. to make orders to the following effect in the exercise of this court’s nobile officium; a) ordaining that a letter in the form set out in the schedule to the European Union (WIthdrawal) Act 2019 be drawn up and signed by the clerk of court on behalf of the Prime Minister, b) ordaining that the letter so signed by sent to the President of the European Council and c) issuing a declarator that a letter in this form sent by this court shall substitute for, and shall be for all purposes and effects 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.
“To impose such other conditions and penalties (including fine and imprisonment, where consistent with the European Union )Withdrawal) (No 2) Act 2019 as to the court shall in the all circumstances seem proper and appropriate in the event of the order not being implemented.”
On Friday, Lord Menzies and his colleagues Lord Brodie and Lord Drummond Young ruled that the Prime Minister has seven days to lodge his response to the petition brought by the remainer campaigners.
Aidan O’Neill QC, the same lawyer who persuaded Court of Session judges this week that the prorogation of Parliament was unlawful, addressed the court during the five minute long hearing.
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.”
Legal papers lodged by the petitioners state they believe the Prime Minister’s strategy is ignore the wishes of Parliament.
The papers state: “The first respondent’s avowed strategy of proposing and threatening to breach the United Kingdom’s EU law duties of sincere co-operation is one of trying to discourage another member state, or other member states, from agreeing to the extension of the Article 50 notice period notwithstanding that the holder of the office of Prime Minister is statutorily obliged under the 2019 act to request it.
“The clear intention of the Prime Minister in pursuing this strategy of non co-operation with, and attempted disruption of the European Union is to subvert the clear will and frustrate the unequivocal intention of the Union Parliament as expressed in the 2019 act that the United Kingdom not leave the European Union on October 31 2019 without a deal.
“The first respondent is however seeking unlawfully to continue to pursue the United Kingdom government’s policy in this regard rather than comply with the will and effect the intention of the Union as set out in the 2019 act. Such action is unlawful and wrongful.
“In all the circumstances, the petitioners are reasonably apprehensive that the first respondent intends to continue his course of action seeking to frustrate the will and intention of the Union Parliament as expressed in the 2019 act.”
During Friday’s hearing, Mr O’Neill 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.”