Scotland’s highest civil court is to hear if Boris Johnson may be jailed if he does not obey the law and fails to ask the EU to give the UK enough time to reach a Brexit deal.
It will also determine if a court official could request a delay from the EU if the Prime Minister refuses to.
The so-called Benn Act passed by Parliament last month requires Johnson’s government to ask for an extension until January 31 if a withdrawal deal is not found by October 19.
However ministers persist in insisting that the UK will leave the EU with or without a deal on October 31, and Boris Johnson says he would rather be “dead in a ditch” than request a delay to secure a Brexit deal for the UK.
The court case starting today, brought by SNP MP Joanna Cherry QC, Jolyon Maugham QC of the Good Law Project and Vince Dale, is to determine if the Court of Session can require Boris Johnson to obey the legislation.
Joanna Cherry QC explained: “Like much of what Boris Johnson says, there is a gulf of truth between the obvious facts of the matter and what he and his Government have been saying.
“He cannot be trusted, and this court action is about ensuring he abides by the law.
“If Boris Johnson tries to defy the law and defy both the Holyrood and Westminster parliaments by crashing out of the EU without a deal – then we are calling on the Scottish courts to uphold the law.”
Speaking to BBC Radio Scotland’s Good Morning Scotland programme on Friday, she added: “We’re not bringing this case because we think there’s any loophole in the Benn Act.
“We’re bringing this case because we’re dealing with a British Prime Minister who brags about not obeying the law and has form for doing things that are unlawful.
“Boris Johnson is not above the law, whether in Scotland or south of the border, thanks to the decision of the UK Supreme Court.”
The SNP MP also said she hopes the Prime Minister will be clear on his position about obeying the Benn Act.
She said: “If this court case achieves nothing else but getting him to be clear about what his position is, then it will have achieved something.”
In a dual legal pincer, Scotland’s highest civil court will hear two cases in the space of five days that could compel Boris Johnson to extend the negotiations.
The legal action will first ask the Court of Session’s Outer House to grant an order ensuring Johnson requests an extension to the Article 50 process should he refuse to abide by the terms of the Benn Act by October 19.
On Tuesday the team will go to the Inner House to ask the Scottish judges to use the unique power of “nobile officium” to empower a court official to sign the extension letter if the Prime Minister refuses to do so.
Boris Johnson’s Brexit proposal “unconvincing”
As well as the court showdowns for Boris Johnson, he faces a showdown with EU leaders who remain unconvinced that his Brexit proposals will not jeopardise Irish peace and the economy of Ireland which remains an EU state and the responsibility of the EU.
European leaders gave his fresh Brexit proposals short shrift on Thursday, with senior figures dubbing his “two borders” customs suggestion for Northern Ireland “unconvincing”.
The Prime Minister is expected to continue his efforts on Friday and over the weekend to convince Brussels to show flexibility on his submitted plans.
A spokesman for the PM said his chief negotiator David Frost was currently locked in “technical level” talks in Brussels to determine whether a deal could be struck in the coming days.
The PM told MPs in the Commons on Thursday that he had made a “genuine attempt to bridge the chasm” with Brussels by making compromises as time runs out before the scheduled October 31 Brexit date.
But Irish Premier Leo Varadkar said the Brexit plan “falls short in a number of aspects” while his deputy Simon Coveney said “if that is the final proposal, there will be no deal”.
And Donald Tusk, president of the European Council – the body made of up national leaders – said he told Boris Johnson “we remain open but still unconvinced” during talks on Thursday.
Downing Street said the proposals to address problems with the Irish border were the “broad landing zone” and the “basis for discussion” in a conciliatory move after Number 10 sources had previously claimed they represented a final offer to Brussels.
Mr Varadkar said he could not fully understand how the UK envisages Northern Ireland and Ireland operating under different customs regimes without the need for checkpoints.
“We need to explore in much more detail the customs proposals that are being put forward as it’s very much the view of the Irish government and the people of Ireland, north and south, that there shouldn’t be customs checkpoints or tariffs between north and south,” he said.
Mr Tusk also spoke to Mr Varadkar on Thursday and delivered the message “we stand fully behind Ireland”.
Having read Johnson’s Brexit proposals, the European Parliament’s Brexit Steering Group said it had “grave concerns” about the plan.
“Some way from a resolution”
It issued a statement saying: “The proposals do not address the real issues that need to be resolved, namely the all – island economy, the full respect of the Good Friday Agreement and the integrity of the Single Market.
“While we remain open to workable, legally operable and serious solutions, the UK’s proposals fall short and represent a significant movement away from joint commitments and objectives.”
European Commission president Jean-Claude Juncker spoke to Mr Varadkar and emphasised that “stable and predictable” measures were needed that “cannot be based on untried arrangements” that would be left to negotiations in a transition period.
“Accepting such a proposal would not meet all the objectives of the backstop,” a commission statement said. “For this reason, further discussions with the United Kingdom’s negotiators are needed.”
Mr Johnson told the Commons on Thursday that while his proposals do not deliver all his Brexit goals they are better options than to “remain a prisoner” of the current situation.
But he accepted that they are “some way from a resolution” on the situation.
Despite a critical reception on the Continent, hope was growing in Westminster that the PM might be able to command a majority for his deal.
The Conservative leader appeared to be building support from the DUP, Eurosceptics within his own party and some opposition MPs wishing to avert a no deal.
But their stances could well alter if Brussels insists on changes, as seems likely.
Labour refuse to support a “reckless deal”
In what appeared to be a warning shot to would-be rebels in his own party, Jeremy Corbyn said no Labour MP could support the “reckless deal”, which he said would jeopardise the Good Friday Agreement.
Johnson’s plans would see Northern Ireland apply EU rules on goods but stay in a customs territory with the UK.
This would create a regulatory barrier for goods crossing the Irish Sea and create a customs border between Northern Ireland and the Republic of Ireland – but Mr Johnson has insisted there would be no need for checks or infrastructure at the frontier.
The plans require the currently suspended Northern Ireland Assembly to approve the new arrangements, with a vote every four years – something which has caused concern in Ireland as the Northern Irish Assembly has not sat for nearly three years due to gridlock and if it did, Ireland’s future would depend on the DUP government there.
Stormont voting structures mean a bloc of members of the Legislative Assembly from either the nationalist and unionist community – which includes Johnson’s DUP allies – can veto certain decisions, even if a majority of members back them.
Mr Coveney said: “We cannot support any proposal that suggests that one party or indeed a minority in Northern Ireland could make the decision for the majority in terms of how these proposals would be implemented in the future.”
The Prime Minister’s official spokesman said the four-year limit “is the one that we believe is sensible”.