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I’m in Court 1 at Court of Session, as petitioners @JolyonMaugham @joannaccherry move case seeking to enforce the Benn Act - requiring a request to extend Brexit Exit Day if no Deal is agreed. Seek use of court’s ‘Nobile Officium’ to sign letter if Boris Johnson refuses.
Petitioner’s Counsel currently in detailed discussion of full timetable. Like Prorogation case, time is tight (deadline day is 19 October) & case may need to wind through any Outer House, Inner House, & then UK Supreme Court processes.
Mr O’Neill QC, for petitioners, says it’s ridiculous to suggest there’s no serious time pressure. Points to 12 days between Benn Act deadline & crashing out, within which letter needs sent & then EU Governments would likely need to meet & agree. Court rises to consider.
To summarise where we’re at:
- Court is hearing procedural arguments in case on how to force Boris Johnson to obey the law.
- Outer House (Lord Pentland) will hear arguments on jurisdiction today.
- Nobile Officium aspect (at Inner House) expected to be next Tuesday (tbc).
Court returns. Confirmed Court will sit on Tuesday October 8 for full day on ‘Nobile Officium’. Will consider legal competency & merits of the case. Documents to be lodged by parties by 2pm Monday at latest.
After short statement, court rises again. We’re getting a good workout here. Short and sweet procedural session. Onto Lord Pentland.
Here’s a wee video explainer on what happens next. Any croak in my voice attributable to a rather fun time on Cowgate last night...#PublicInterestTweeting
O’Neil rises for petitioners. States hearing will be 90 minutes each side. So bit like a Champions League Knick-our. Two legs, home & away. VAR appeals go to Inner House, presumably.
O’Neill runs through remedies sought:
1) interdict against Boris Johnson (BJ) & all UK Ministers to not defy the Benn Act.
2) order that BJ sends letter to delay Brexit as required by the Act.
Adds other remedies may be required - including sanctions - at later stage.
O’Neill turns to question of whether the court can hear the case (jurisdiction). Respondents (UKGov) claim case invalid as BJ is not a Scottish domicile. O’Neill says this claim is nonsense. UK Ministers are domiciled throughout UK.
Lord Pentland asks if BJ is being sued as an individual or as Prime Minister (PM). O’Neill says answer is essentially “hybrid” - BJ as PM is “threatening legal wrongs” that action must be taken on.
O’Neill turns to competency. Says Court of Session Act allows action on excesses of power or to enforce statutory duty. Benn Act places “clear duty on office or individual” on Boris Johnson.
O’Neill: Boris Johnson is threatening to “sabotage will of Parliament”. This is a threat to disobey the law. These are “repeated threats with a continuing course or conduct which risks being translated into unlawful deeds”.
Lord Pentland says no more time is required on competency question - a positive sign for petitioners here.
O’Neill quotes Scots law authority: “the law can compel the sovereign [themselves]”. Essentially, no one is above the law of the Courts in Scotland - not even Boris Johnson.
O’Neill: UKGovernment Ministers feel that they are above the law based on their statements. You cannot trust them to obey the law.
O’Neill doubles down on the weakness of UKGov’s support for rule of law. Points to lack of affidavits in this case (happened in Cherry case too). Says threats are being made in parliament on basis government can use parliamentary privilege as a legal shield.
Lord Pentland asks about the lack of affidavit from Boris Johnson - why does this matter when the Prime Minister has said he will obey the law.
Breaking: UK Government tell Scottish Court that Prime Minister Boris Johnson WILL send the extension letter to delay Brexit as required by Benn Act. Aidan O’Neill QC reads out bombshell legal statement in court, until now kept secret.
O’Neill: UK Government are telling this court one thing & the UK Union Parliament another - claiming UK will leave EU on the 31 of October come what may. New legal position given to petitioners just last night.
O’Neill says there is a contradiction in BJ statements - that “he will obey the law but not that law [the Benn Act]” that requires an extension to Brexit if no Deal is agreed by October 19.
O’Neill returns to key principle: petitioners have “reasonable apprehension” of law-breaking due to Boris Johnson’s statements to follow Benn Act extension request in no circumstances.
O’Neill & Lord Pentland discussing consequences of UK Government holding the Court of Session’s orders in contempt. Fact they’re considering what happens if the Government lies to the court or refuses to comply with rule of law a sign of rather extraordinary times, IMO...
O’Neill: UK Government says leaving the European Union is a matter for Government. “No it is not.” Benn Act means it is a matter for Parliament - & if legislation is non-complied with it is a matter for this court.
Wry from O’Neill: ‘statements that the government that they will carry out the wishes of the British people presumably leaves out Northern Ireland’. [Side note: Even the word Brexit - British Exit - is incompatible with reality of the multi-national UK&NI constitution...]
O’Neill lays into “opaque & totally incomprehensible” UKGov position “being used for obfuscation to sow confusion that somehow the law doesn’t compel the Prime Minister”. Contradiction is undermining the rule of law.
O’Neill moves onto PM’s duties: to uphold the constitution, to respect the rule of law. He is not simply a party leader. The office of Prime Minister is to uphold the constitution - not to undermine it. This cabinet is corrosive to that duty.
O’Neill: This Court must say “Enough is enough” to Boris Johnson, with coercive orders to uphold democracy, rule of law, & the constitution.
O’Neill: Briefings made in the name of the Boris Johnson say that not only will he ‘die in a ditch’ rather than extend, but they will seek to sabotage & subvert the will of Parliament to get an extension.
O’Neill reads report submitted in affidavit that Boris Johnson told the cabinet that the government will not request an extension, & their course of action will only become known “nearer the time”. Routes being considered to sabotage the process inside Downing Street.
Lord Pentland understandably sceptical about how much weight to give to anonymous briefings in newspapers (this opaqueness being a reason folk give anonymous briefings in the 1st place...) how can he substantiate claims if we don’t know who made the statements & why?
If key aide Dominic Cummings tells the press-core (unattributed) ‘we’re going to sabotage any extension’ then that is clearly politically explosive - but difficult to legally affirm.
Court rises for lunch.
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