10:14, October 01 45 0 theguardian.com

2019-10-01 10:14:04
Anti-Brexiters in legal bid to force Boris Johnson to ask EU for delay

Boris Johnson could be ordered by a Scottish judge to delay Brexit after pro-remain campaigners secured an emergency court hearing this Friday.

The campaigners have asked the court of session in Edinburgh to issue an injunction or interdict, which would force the prime minister to ask the EU for an extension to article 50 if he fails to get a new deal passed at Westminster by 19 October.

Lord Pentland, the judge, said he would hear the case on Friday and issue his ruling on Monday, triggering appeals likely to end with a fresh UK supreme court hearing within the next three weeks.

Timeline

Boris Johnson's parliamentary defeats

In the first vote Johnson faces as prime minister, 21 rebel Tory MPs vote with the opposition to seize control of the order paper to allow a debate on a bill that would block a no-deal Brexit. 

Against Johnson's wishes, the Commons passes  by 329 votes to 300 the second reading of the European Union (withdrawal) (No 6) bill proposed by Hilary Benn.

Later the same day the Benn bill passes the third and final reading needed to become law, this time by 327 to 299 votes.

Johnson responds by attempting to force an early general election. The 298 MPs who support him are short of the two-thirds majority required by the Fixed-term Parliaments Act, making it a third defeat in a single day for the government.

Dominic Grieve's bid to force the government to release documents related to the Operation Yellowhammer no-deal planning and on the decision to prorogue parliament defeats Johnson by 311 to 302.

Johnson's second call for an early general election is supported by 293 MPs, still short of the two-thirds majority required. Parliament is prorogued and MPs briefly occupy the chamber after the session is closed. 

The supreme court rules that Johnson's closure of parliament was unlawful and that MPs must return.

In the first vote in the reconvened House of Commons, MPs vote by 306 to 289 against a three-day recess to allow Conservative MPs to attend their party conference.

The so-called Benn Act, passed by parliament last month, requires the UK government to ask for an extension until 31 January 2020 if no deal is agreed, but Downing Street officials have repeatedly suggested they will try to thwart the legislation.

Asked last week whether Johnson would uphold the statute’s requirements, Downing Street said: “We will comply with the law, but we are leaving on 31 October.”

The campaigners have also asked the court to bar the government from writing separately to EU leaders asking them to refuse the application, after it was reported No 10 may do so to thwart the Benn Act.

The case has been brought by Jolyon Maugham QC, an anti-Brexit legal campaigner, and Joanna Cherry QC, a Scottish National party MP, who were both involved in last week’s supreme court ruling which said Johnson had illegally prorogued parliament, and has been funded by the green energy entrepreneur Dale Vince.

Pentland, an outer house judge, could issue the interdict or reject it on Monday, or he could rule instead that the case has to be heard and decided by the inner house, the senior tier of the court of session, which is Scotland’s civil court.

Vince’s legal action was originally due to be heard by the inner house next Tuesday because it has a power unique within the UK to take action if someone refuses to do something they are legally obliged to do.

That authority is known as the nobile officium, and Vince, Maugham and Cherry are likely to ask the inner house to use those powers to write to the EU seeking the extension on the prime minister’s behalf if he refuses to do so.

Pentland’s decision came after some hasty legal manoeuvring by Vince’s legal team. They had learned that the government’s lawyers were planning to argue next week that the case should have been heard first in the outer house, where Pentland sits.

That would delay their case, so in an effort to prevent that happening, Vince’s lawyers applied on Monday for an urgent hearing in the outer house to ensure it was dealt with urgently in that tier of the court.

Whichever side loses is likely to appeal directly to the supreme court, setting the scene for further constitutional turmoil after 11 supreme court judges ruled unanimously that Johnson had, in effect, lied to the Queen about his reasons for suspending parliament.

Quick guide

The six key paragraphs in the supreme court's verdict

That the court judgment was not about Brexit

“It is important, once again, to emphasise that these cases are not about when and on what terms the United Kingdom is to leave the European Union. They are only about whether the advice given by the prime minister to Her Majesty the Queen on 27 or 28 August, that parliament should be prorogued from a date between 9 and 12 September until 14 October, was lawful and the legal consequences if it was not.”

That the court had the right to act

“The first question is whether the lawfulness of the prime minister’s advice to Her Majesty is justiciable. This court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the government for centuries.“

That the prorogation was not ‘normal’

“It prevented parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31 October. Proroguing parliament is quite different from parliament going into recess. While parliament is prorogued, neither house can meet, debate or pass legislation. Neither house can debate government policy. Nor may members ask written or oral questions of ministers or meet and take evidence in committees…This prolonged suspension of parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the vonstitution of the United Kingdom on 31 October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme.”

That Boris Johnson’s advice to the Queen was unlawful

“The court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue parliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.“

That parliament has not been prorogued

“This court has already concluded that the prime minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the order in council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices.”

What happens next?

“It is for parliament, and in particular the Speaker and the Lord Speaker, to decide what to do next. Unless there is some parliamentary rule of which we are unaware, they can take immediate steps to enable each house to meet as soon as possible. It is not clear to us that any step is needed from the prime minister, but if it is, the court is pleased that his counsel have told the court that he will take all necessary steps to comply with the terms of any declaration made by this court.”

The full judgment and the summary judgment can be downloaded from the Supreme court website.

David Gauke, the rebel former cabinet minister, has predicted there would be legal challenges in the English courts too if Johnson refused to uphold the Benn Act.

Maugham said time was now running out; there were only 13 court sitting days until the 19 October deadline.

“We want it all determined before 19 October because a delay for the prime minister could be as good as a refusal [of our motion],” he said. “We are acting now to ensure he faces the consequences if he breaches the obligation placed upon him by parliament.”

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