UK prime minister Boris Johnson is obliged to seek an extension to Article 50 if a Brexit deal fails, as stipulated by the Benn Act. And a Scottish court was asked to examine ways to enforce that obligation further. The court decided to defer a ruling until after the EU summit, to see if Johnson complied. But there is plentiful evidence that Johnson intends to avoid an extension.
Meanwhile, Brexit negotiations are at an impasse and possibly collapsing, leaving no-deal disaster likely. So it was perhaps not surprising that European Council president Donald Tusk didn’t mince his words on this:
.@BorisJohnson, what’s at stake is not winning some stupid blame game. At stake is the future of Europe and the UK as well as the security and interests of our people. You don’t want a deal, you don’t want an extension, you don’t want to revoke, quo vadis?
— Donald Tusk (@eucopresident) October 8, 2019
The appeal went ahead to the Inner House of the Scottish Court of Session. It considered the submissions, but decided that it would reconvene on 21 October (after the EU summit) and at that point may take further action if Johnson has not carried out parliament’s instructions.
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Jo Maugham QC, one of the petitioners to the appeal, argues that this means if Johnson:
breaks that promise [to the court] he will face the music – including possible contempt proceedings. And the Courts are likely to make good any failure on his part, including signing the Benn Act letter.
Or as one retired lawyer put it:
This is quite a clever resolution. Nothing to appeal to the Supreme Court.
Just “We are watching, We are waiting to see if you keep your word. If you don’t we know what we have to do.”
Time enough to wait and make sure the EU actually get it without interference.
— Fionna O'Leary, 🕷 #FBPE (@fascinatorfun) October 9, 2019
The appeal followed a hearing of the Outer House. At that hearing, the petitioners – Maugham, the Scottish National Party’s Joanna Cherry, and businessman Dale Vince – asked the court to pin down the prime minister as follows:
To interdict the Prime Minister and any other minister of the Crown in right of the United Kingdom and anybody acting on their behalf or at their request from withdrawing, cancelling or otherwise undermining the effect of any letter sent in accordance with section 1 (4) for the European Union (Withdrawal) (No.2) Act 2019;
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 response, a government spokesperson declared to the court that Johnson accepts he “will send a letter in the form set out” by the Benn Act, requesting a delay to 31 January should parliament reject his Brexit plan.
However, the petitioners also made it clear that Johnson should not be allowed to undermine the contents of that letter; for example, if Johnson or his associates attempted to ensure an extension is rejected by lobbying one or more countries in the EU. In this regard, suspicion has already fallen on Hungary, as two of its senior ministers were recently seen leaving the cabinet office:
Footage of Hungarian Foreign Minister Péter Szijjártó and Ambassador Kristóf Szalay-Bobrovniczky leaving the Cabinet Office this morning at 11:05
Boris Johnson was holding an "Emergency" Cabinet meeting in the same building at the same time 🤔 pic.twitter.com/xLkcMAKIuO
— Resisters (London) (@ResistersLondon) October 3, 2019
We spotted this point late in the day and pushed the Court for an order in the terms of the below. pic.twitter.com/blPX3Dn03A
— Jo Maugham QC (@JolyonMaugham) October 4, 2019
Government ministers Michael Gove, Stephen Barclay, and Dominic Raab were also identified as having met with the delegation:
It was Steve Barclay and Dominic Raab who met with Hungarian Foreign Minister Péter Szijjártó. Separately, Michael Gove met with Szijjártó and Szabolcs Takács, Commissioner for Brexit. pic.twitter.com/dUX5OvlsQA
— Tom Coburg (@Undercoverinfo1) October 5, 2019
It seems Downing Street may be trying to wreck EU unity, regardless of long-term repercussions:
Downing St has tonight said explicitly that EU governments which oppose a Brexit delay will be rewarded by Boris Johnson, and that if the EU approves a delay Johnson will do his damnedest to sabotage the functioning of the EU, pending Brexit. This is the most explosive… pic.twitter.com/QWtvex6O90
— Robert Peston (@Peston) October 7, 2019
Johnson also stated that should a vote of no-confidence (VONC) go against his government, he would refuse to leave 10 Downing Street.
We also (already) have contingency plans in place, which we will now develop, to enable an illegitimate, squatting Prime Minister to be removed from Number 10. No further detail will be provided at this stage.
Be you ever so high, the law is above you.
— Jo Maugham QC (@JolyonMaugham) October 6, 2019
Then there was this bombshell:
We were assisted in this regard by the rather helpful (from our perspective) statement a "senior Downing source" gave to @bbclaurak. We put this before the Court which, I believe, immediately appreciated the gap in the PM's proffered undertakings. pic.twitter.com/AHncqfM6g4
— Jo Maugham QC (@JolyonMaugham) October 4, 2019
Outer House ruling
[Johnson] is subject to the obligations of the [Benn] Act; (b) in the event of neither of the conditions in section 1(1) or (2) being satisfied, the first respondent will comply with section 1(4) no later than 19 October 2019; and (c) that he will not frustrate the purpose of the [Benn] Act or the purpose of any of its provisions. In other words, there can be no doubt that the first respondent now accepts that he must comply with the requirements of the [Benn] Act and has affirmed that he intends to do so.
After that ruling, Maugham expressed his concerns:
The court said it has promises from the Government that the Government will send the letter mandated by Parliament and will act in a way as not to frustrate Parliament’s intention in enacting the so-called Benn Act.
For myself, I very much hope the court is right and the Government will, as it has promised to do, abide by the law.
But there is very real doubt in my mind that the Government will act in accordance with the law and so tomorrow we will pursue our appeal against the decision of the Outer House to the Inner House of the Court of Session.
In a brief interview, Maugham explained why the appeal was necessary:
— LittleGravitas 🇪🇺 🔶🎗 (@LittleGravitas) October 8, 2019
Recent polls, meanwhile, suggest that a majority of voters may now be in favour of remaining in the EU:
In many democracies a huge change like Brexit would require a supermajority. In the UK politicians are trying to force it through against the will of the majority.
Brexit is politicians against democracy. pic.twitter.com/IaimIKf1sn
— Nick Reeves – Revoke #FBPE (@nickreeves9876) October 5, 2019
As for parliament, after another prorogation, it will reconvene on 14 October and then have a special session on Saturday 19 October. That day happens to coincide with a planned march through London for a people’s vote.
The special sitting of parliament may also result in a VONC. And if that is passed, a caretaker government could be installed to arrange an extension for Brexit and a general election or a confirmatory referendum.
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