Boris Johnson’s Do or Die Brexit Vow Goes to Court
Boris Johnson’s Do or Die Brexit Vow Goes to Court
(Bloomberg) --
In the bitter war over Brexit, Scottish courts are becoming a familiar battleground.
The latest lawsuit, which starts in Edinburgh on Friday, effectively puts the onus on judges to decide if Prime Minister Boris Johnson can make good on his threat to lead the country out of the European Union on Oct. 31 even if there’s no accord in place to secure ongoing trade.
That “no-deal” Brexit has been blocked by legislation in Parliament, but as Johnson wings his way around European capitals in an attempt to make his deal more palatable, he’s refused to rule out flouting it. The aim of the lawsuit is to get an extension to the Brexit deadline or get the court to do it for him.
Just the fact that the case exists is testament to how febrile politics has become in the country whose democracy was once looked up to. Regardless of the outcome, a court is hearing whether the prime minister should be compelled not to break the law.
Historically wary of being seen to intervene in political questions, the judiciary has taken center stage in the run up to the Brexit deadline. Ominously for Johnson, the government has lost key lawsuits, with Britain’s Supreme Court last week dealing an unprecedented rebuke over his move to suspend Parliament. That judgment upheld an earlier ruling in Edinburgh.
“We shouldn’t, in a modern democracy, be faced with a prime minister who’s refusing to abide by his very clear legal obligations,” said Jolyon Maugham, the English tax lawyer who has been leading the cases to disrupt Johnson’s Brexit policy. “These are, for those who haven’t appreciated it already, extraordinary times.”
Johnson has said he would rather be “dead in a ditch” than delay leaving the EU. After Parliament passed a law designed to force him to seek a Brexit delay by Oct. 19, the cabinet repeatedly criticized the bill, dismissing it as “lousy.” The comments have spooked financial markets, with U.K. stocks this week tumbling the most since January 2016.
In the U.K., English, Scottish and Northern Irish judges have jurisdiction over British constitutional affairs. Maugham’s latest case in Scotland’s Court of Session involves asking the judiciary to intervene on behalf of the government to ask for an extension to Brexit should the prime minister refuse.
In addition to asking the court to send the letter asking for a Brexit extension, Maugham is seeking to bind Johnson under threat of a fine or imprisonment if he refuses to comply. Even if the prime minister secures a deal with the EU before Oct. 19th, the case still stands because he also needs to get it through Parliament.
The hearing is currently taking place in the Outer House of the Court of Session, with a ruling expected on Monday.
“We are concerned that those threatening words are shortly going to be translated into unlawful deeds,” Aidan O'Neill, a lawyer for Johnson's opponents said.
Maugham initially lost both suits in the lower court, before they were overturned at the appeal court. He’s said he expects this case to also go to the Supreme Court in the week of Oct. 14.
The case, which a judge said Friday is unprecedented, seeks to make use of a power peculiar to Scottish law that allows the courts to fix an outcome if there’s gap in the rules.
It’s a tough ask, said James McGachie, a public law attorney at DLA Piper in Edinburgh. The procedure has never been used to require a government minister to carry out a particular act, he said.
“We’re in danger of becoming quite inured to the number of unprecedented situations that we find ourselves in,” McGachie said.
A regular thorn in the side of the U.K. government, Maugham won two prior cases in Scotland: that the five-week suspension of Parliament should be quashed, and that the U.K. had the right to unilaterally revoke the clause triggering Brexit.
Despite being a tax attorney, Maugham says he now spends 90% of his time on Brexit cases. But with his new-found passion comes a torrent of social media abuse and death threats. He can no longer work from his office for fear of attacks and has been receiving self-defense lessons as a result, he said.
The current Scottish case becomes pivotal should Johnson be unable to reach agreement with the EU. While the prime minister is optimistic that he’s finally got enough support from within his Conservative Party, officials in Brussels said his proposals were unacceptable. The impasse has triggered a renewed focus on the legislation known as the Benn Act that Maugham and his fellow petitioners are trying to enforce.
Foreign Secretary Dominic Raab, standing in for Johnson at prime minister’s questions on Wednesday, didn’t shy away from casting doubt on the legislation, saying it should be scrutinized. It’s also spurred a guessing game over how the government might try to bypass the act – perhaps by invoking emergency powers.
A similar court case in London has already succumbed to concerns that not enough is known. Campaign group Liberty’s attempt to judicially review the prime minister’s plan was “entirely hypothetical,” a spokeswoman for the judiciary said in September.
Maugham is adamant there’s a legal basis for his new lawsuit: “The cases I’ve been involved in are cases that seek to place power into the hands of the proper decision makers.”
--With assistance from Eddie Spence.
To contact the editor responsible for this story: Tony Aarons at aaarons@bloomberg.net, Rodney Jefferson
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