08:19, October 18 289 0 theguardian.com

2019-10-18 08:19:03
Liberty fails in legal bid aimed at preventing no-deal Brexit

The court of appeal in London has refused the human rights organisation Liberty permission to hear an urgent application seeking to prevent Boris Johnson crashing out of the EU without a deal.

Three senior judges, the lord chief justice, Lord Burnett of Maldon, the master of the rolls, Sir Terence Etherton, and president of the Queen’s bench division, Dame Victoria Sharp, agreed that there was no need for the matter to be considered by the English courts immediately.

Richard Hermer QC, representing Liberty, argued that delaying any hearing until next week would allow the prime minister over the weekend – if parliament rejects a deal – to persuade the EU to refuse an extension to UK membership.

The courts, he said, should not abdicate their responsibility and had a “consititutional duty to be seized of the matter”. If the issue was left until after the weekend, then Johnson might cause “irremediable damage” to the UK by frustrating the aim of the Benn act, which is intended to prevent a no-deal Brexit. The Benn act comes into effect if parliament fails to agree a deal by the end of Saturday.

But Sir James Eadie QC, for the prime minister, said it was premature to hear the application before the vote in parliament on Johnson’s new deal. “There will be a really significant turn of the kaleidoscope on Saturday,” he said. “It would be inappropriate for the court to interfere in the process.

“Everyone on the government’s side has been dedicating their efforts to get to a position of a deal. The prime minister’s opposition to the Benn act and to an extension is extremely well known.” If the deal is passed, Eadie said, it would be “unnecessary for the court to engage in this exercise … [since] parliament may well approve the deal done with the EU.

“It’s fanciful to suggest that the Europeans are not entirely aware of the fact that this act exists and of the government’s thorough-going opposition to the principle of an extension.”

After hearing argument for less than two hours, the three senior judges unanimously rejected Liberty’s request for an urgent hearing in full on Friday. Burnett said they would give their reasons at a later date.

If the deal is rejected in parliament on Saturday, both Liberty and the Independent Workers Union of Great Britain (IWGB), which has submitted a similar claim, could return to the courts next week.

Meanwhile, Scotland’s highest court is to hear a fresh challenge from anti-Brexit campaigners as they seek to have Johnson’s agreed deal with the EU declared unlawful, arguing that it contravenes legislation – originally amended by the Brexiter Jacob Rees-Mogg – that prevents Northern Ireland forming part of a separate customs territory.

Jolyon Maugham QC, the director of the Good Law Project, who has spearheaded a series of court challenges to the UK government over Brexit, is seeking an interdict from the court of session in Edinburgh that would in effect suspend the deal, which parliament is due to debate in a historic sitting on Saturday, as well as a court order to ensure that the full, final text is put before MPs if they do vote on the deal as planned.

Lawyers for Maugham will tell the court on Friday morning the deal contravenes section 55 of the Taxation (Cross-border Trade) Act 2018, which states that it is “unlawful for Her Majesty’s government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain”.

Lord Pentland will hear the case. Maugham’s legal team insist that section 55 is “crystal clear” and that any form of differentiated deal for Northern Ireland will contravene it.

On Twitter, Maugham confirmed that he would ask the inner house of the court on Monday to order the prime minister to apply for an extension to article 50 until 31 January under the Benn Act, or send the letter itself.

Lord Carloway, Scotland’s most senior judge, has already cleared time for an emergency hearing at noon on Monday, as part of an earlier action by Maugham along with the Scottish National party MP Joanna Cherry and Dale Vince, the millionaire owner of the Ecotricity green energy company.

Maugham tweeted: “The prime minister’s desire to meet his short-term political objective of leaving on 31 October, after three and a half years, cannot trump the need for proper scrutiny of a 500+ page document with epochal consequences for Great Britain, Northern Ireland and the EU.”