Lord Pentland arranged a hearing to take place this Friday at the Court of Session for a legal action brought by SNP MP Joanna Cherry, English lawyer Jo Maugham QC and businessman Dale Vince.
The trio want the court to grant an interdict that would stop Boris Johnson from not complying with the terms of the recently passed Benn Act.
The legislation, which was introduced by Labour MP Hilary Benn, was passed by Parliament following claims the PM would ignore the wishes of elected politicians and deliver a no-deal Brexit.
The petitioners who brought the case to the Edinburgh court want judges there to consider fining or imprisoning Mr Johnson in the event of him disregarding the Benn Act.
The new case is running alongside another set of proceedings - the so called Nobile Officium action. The Nobile Officium is an action that is not available to courts in England and Wales.
In that action, the same petitioners - Ms Cherry, Mr Maugham, and Mr Dale - are asking the court to sign a letter to European leaders requesting a Brexit extension in the event Mr Johnson refuses to do so.
Petitioners 'forced' into legal action
The petitioners in the case say they have been forced to take legal action because Mr Johnson has said he would rather “die in a ditch” than push back the leaving date beyond 31 October this year.
The petitioners originally included the request for interdict in the Nobile Officium action, which they raised in the Court of Session last month.
However, since then, the petitioners have taken out the request for the order and included it in the new action which they have raised.
According to legal papers lodged with the court last month, the petitioners wanted the court to pass orders.
The papers stated: “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 to be drawn up and signed by the clerk of court on behalf of the Prime Minister b) ordaining that a letter so signed be sent to the President of the European Council.
“To impose such other conditions and other penalties including fine and imprisonment, where consistent with the European Union (Withdrawal) no.2 Act 2019 as to the court shall in all the circumstances seem proper and appropriate in the event of the order not being implemented.”
Aidan O’Neill QC, acting for the petitioners, has asked the court to order the government to lodge their response to the latest legal action within 24 hours.
However, the government’s lawyer Ruth Crawford QC told the court the action contained issues of “legal and constitutional” importance.
She said the government needed more time to prepare their responses.
Ms Crawford added: “The respondents received the petition yesterday by email at 12:16pm. Given the significant legal and constitutional issues in this case and the profound impact that these issues have on the public, it is extremely difficult for the government to locate answers within 24 hours.”
Lord Pentland gave the government 48 hours to lodge their answers. The case will be heard at 11am on Friday qnd the court is expected to rule on whether the remedies begin sought by the petitioners can be granted.
The nobile officium action is expected to be heard next week by judges sitting in the Inner House of the Court of Session.