UPDATE: The legal challenge to the Brexit deal will be heard at the Court of Session in Edinburgh on Friday
Anti-Brexit campaigners plan to lodge a legal action in a bid to ban the Government from putting its proposed Withdrawal Agreement before Parliament as it is unlawful – due to legislation put forward by Brexit champion Jacob Rees-Mogg.
In what may be the most bizarre twist in the twisted, bizarre permutations of enacting the so-called will of the people yet, it is an amendment made by ERG awkward squad leader Rees-Mogg that may provide the ammunition that delays Brexit beyond the October 31 deadline Boris Johnson has vowed he would rather lie “dead in a ditch” after.
Jo Maugham QC said he believes the agreement Johnson has negotiated with the EU, due to be debated in a special parliamentary sitting on Saturday, contravenes legislation stating 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”.
Reports suggest a border in the Irish Sea with differing customs arrangements for Northern Ireland than elsewhere in the UK may form part of the Withdrawal Agreement, with negotiations ongoing in Brussels.
Labour peer Stewart Wood spotted “the spanner in the works” this morning, as well as the irony that it may be an amendment by Jacob Rees-Mogg that makes Johnson’s Brexit deal unlawful.
“This clause (Section 55, or shall we call it the Rees-Mogg backstop) is legally based on the GATT definition of a “customs territory”. It can’t therefore be invalidated merely by the Govt deeming that under their Brexit Deal, Northern Ireland isn’t really in the EU Customs Union” he tweeted.
“Given the Rees-Mogg amendment, I’d be interested to know Government lawyers’ thinking on whether the PM can go ahead & agree a Brexit Deal involving Nthn Ireland still in the EU Customs Union without a serious risk of injunction. Anyone know a lawyer who might give me their view?” he added.
And sure enough Brexiteers’ bête noire Jo Maugham QC, who beat Boris Johnson in court already over his unlawful prorogation of parliament, answered the above question.
Mr Maugham plans to lodge a petition at Scotland’s highest civil court, the Court of Session, on Thursday and expects it to be heard on Friday.
He claimed if the court finds the proposed agreement is unlawful the Government will be obliged to request an extension to Brexit negotiations, under the terms of the Benn Act, which stipulates the Prime Minister must ask the EU for a delay if Parliament does not agree a deal by Saturday.
“We do not understand how the Government might have come to negotiate a Withdrawal Agreement in terms that breach amendments tabled by its own European Research Group.”
Mr Maugham tweeted: “I intend to lodge an immediate petition for an injunction in the Court of Session preventing the Government from placing the Withdrawal Agreement before Parliament for approval.
“We expect that petition to be lodged tomorrow and to be heard on Friday.
“We believe the Government’s proposed Withdrawal Agreement is contrary to section 55 of the Taxation (Cross-border Trade) Act 2018.”
That part of the act states: “It shall be unlawful for Her Majesty’s Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.”
Mr Maugham added: “We do not understand how the Government might have come to negotiate a Withdrawal Agreement in terms that breach amendments tabled by its own European Research Group.
“Unless and until Section 55 is repealed by the UK Parliament it is simply not open, as a matter of law, for the United Kingdom to enter into such an agreement.
“If the proposed Withdrawal Agreement is unlawful, the Government will be obliged to request an extension as mandated by the Benn Act and in accordance with undertakings given to the Court of Session in Vince, Maugham, Cherry v Boris Johnson.”
Watch this space.