An extraordinary court case in Scotland could make Boris Johnson behind bars a reality

An extraordinary court case will take place in Scotland on 4 October. During legal proceedings, the country’s highest civil court will consider whether it can send Boris Johnson to prison should he break the law. The court’s also due to consider whether to override his authority by acting “on behalf” of the PM, without his consent.

Desperate times

Three individuals have launched the legal action, one in a long line that Johnson has faced over Brexit. The SNP’s Joanna Cherry, lawyer Jo Maugham QC, and Forest Green Rovers chairman Dale Vince have brought the action.

Essentially, they want the Court of Session to take measures that would stop Johnson defying the Benn Act. This act dictates that if the PM hasn’t secured support from MPs for a Brexit deal, or no-deal, by 19 October, he must ask the EU for an extension until January 2020. It’s what Johnson has taken to calling the ‘Surrender Act’. Legal papers lodged with the court in September read:

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.

In layman’s terms, that means the petitioners want the court to assume responsibility “on behalf” of the PM for asking the EU for an extension, if Johnson fails to do so. And they want the court to consider what “penalties”, such as fines or imprisonment, he might face if he doesn’t abide by the letter of the law, i.e. obeying the Benn Act.

As the Scotsman reported, in the court proceedings on 4 October, it is “expected to rule on whether the remedies [being] sought by the petitioners can be granted”. Another hearing in the Inner House of the Court of Session next week will consider the nobile officium action, meaning the court-signed letter to the EU they’ve requested.

Ruth Crawford QC, the government’s lawyer, said the action involved issues of “legal and constitutional” importance, the Scotsman revealed.

A big day

Human rights group Liberty has also given the government’s lawyers until 4 October to confirm whether it will abide by the law. Its director Martha Spurrier said:

If we are not satisfied by the answer, we will seek leave to judicially review the government’s intention to break the law

Spurrier also spoke about what she sees as the difference between Liberty’s case and the one in Scotland:

The Scottish action is being run by those opposed to Brexit and is party-political

We want to lift our case out of politics. It is quintessentially about the rule of law and not about Brexit. Our action has nothing to do with the merits of Brexit or of a no-deal Brexit.

So far, the government hasn’t budged on its claim that the UK will leave the EU on 31 October, no matter what. But clearly the stakes are getting higher. It’s hard to imagine the court will recommend jail time for a serving PM. But Johnson has said he’d rather ‘die in a ditch’ than delay Brexit again. And due to this legal action, whether he’d rather go to prison than obey the law could possibly be put to the test.

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