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, 8 tweets, 2 min read
We believe the Government's proposed Withdrawal Agreement is contrary to section 55 of the Taxation (Cross-border Trade) Act 2018 legislation.gov.uk/ukpga/2018/22/…
Unless and until Section 55 is repealed by the UK Parliament it is simply not open, as a matter of law, for the United Kingdom to enter into such an agreement.
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.
The legal team is Aidan O'Neill QC and George Peretz QC instructed by Elaine Motion of Balfour+Manson.
We will be asking for your help to fund the petition. As usual, not one single penny of the monies raised will go to me. The crowdfunder should be live shortly here crowdjustice.com/case/proposed-…
We do not understand how the Government might have come to negotiate a Withdrawal Agreement in terms that breach amendments tabled by its own ERG. (Background Briefing here researchbriefings.parliament.uk/ResearchBriefi…).
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.
If you would like to help the rather hurried crowdfunding page is now live. (Thank you.) crowdjustice.com/case/proposed-…
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More from @JolyonMaugham see all

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Jo Maugham QC
@JolyonMaugham
What happens now?

If the EU offers an extension to 31 January the PM *must* accept it (and if he doesn't the Inner House in the case brought by @DaleVince, @joannaccherry and me will).
If the EU offers an extension to any other date the PM must (also) accept it unless both (a) he asks the Commons whether it accepts that other date and (b) the Commons says "no".
If the EU refuses an offer of an extension there is now insufficient time for the UK and EU formalities for an extension to be satisfied before 31 October and so we will either leave without a deal or revoke.
Read 4 tweets
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Jo Maugham QC
@JolyonMaugham
We intend to adopt a neutral position today in relation to whether the AG for Scotland and the Prime Minister are in contempt of court. But this, we believe, is the key exchange. dropbox.com/s/yj03r8izvuad…
And here is a copy of our Note of Argument for the hearing today. Given the arguable breach by the PM of his undertakings we will ask the Court to continue oversight of his actions. dropbox.com/s/4atoks8xn4kq…
I act not to punish the Prime Minister for his failings. I act to secure that a man with a mandate from 160,000 recognises the supremacy of laws enacted by a Parliament with a mandate from 46 million, however inconvenient they are to him.
Read 3 tweets
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Jo Maugham QC
@JolyonMaugham
My Sunday morning in a mountain refugio in Spain, so far. Washing my socks by hand with bath soap. Picking up scratchy coverage of the rugby. Coordinating a response to the PM's silliness. Advising on the Lib Dem Federal Constitution. Yours?
The way home.
Read 3 tweets

Related threads

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George Peretz QC
@GeorgePeretzQC
My note on why the new NI Protocol is in breach of section 55 of the Taxation (Cross border Trade) Act. legislation.gov.uk/ukpga/2018/22/…
A couple of points worth drawing out.
1. The default position is that all NI imports from GB or the rest of the world will be subject to the full panoply of EU customs rules and tariffs. Limited exceptions have to be proved by the importer.
Read 13 tweets
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Michael Gray
@GrayInGlasgow
Back in Court of Session. Case before Lord Pentland by @JolyonMaugham claiming interdict against UK Ministers on grounds that the proposed Brexit Withdrawal Agreement breaches existing law on the customs status of Northern Ireland.
Aidan O’Neill QC appearing for petitioner. Will speak for 1 hour 30. Begins by stating that petition anticipated the contents of the Withdrawal Agreement - and was largely correct. Claims it breaches section 55 of Taxation (Cross border Trade) Act 2018 on Northern Ireland.
O’Neill: There is not yet an Agreement under EU Law - at it is not passed by the European Parliament as required. So this remains a live legal issue.
Read 30 tweets
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Barrister's Horse
@BarristersHorse
THREAD

THE CURSE OF THE BENN ACT RETURNS

1. I've tweeted about the difficulties of the 'Benn Act' before. Little did I know how circumstances would evolve and how it may play such a huge role in what might unfold.
2. Jolyon Maugham is litigating in the Scottish Courts again. He's seeking an injunction to prevent the Government placing the new Withdrawal Agreement (WA) before Parliament for a vote later this week.
3. The basis for the latest litigation is that Boris's version of the WA contravenes S.55 of the Taxation (Cross border trade) Act 2018 ('Tax Act'), which states it is unlawful for Northern Ireland to be in a different customs territory to Great Britain.
Read 8 tweets
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Barrister's Horse
@BarristersHorse
THREAD:

THE TROUBLE WITH THE BENN ACT #SurrenderAct

1. We have seen the EU shift position over the past few days - they now insist ANY deal must include a Customs Union.
2. There's a dirty little secret that no-one is willing to divulge. I think the public are being misled by politicians & lawyers whom are presently engaged in litigation to force an extension to the Art. 50 process.
3. The current litigation seeks to compel the PM to send a letter requesting a further extension. A Scottish remedy of Nobile Officium is sought where the Court may send a letter on PM's behalf should he refuse.
Read 18 tweets
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Scott Wortley
@Scott_Wortley
The argument here seems to be that s 23 (1) of the European Union (Withdrawal) Act 2018 gives a general power to ministers to modify any provision under any enactment (including enactments passed within the same session of parliament) legislation.gov.uk/ukpga/2018/16/…
If such an order is made it is to be made in accordance with Sch 7 of the 2018 Act
legislation.gov.uk/ukpga/2018/16/…
It does not seem that the power to remedy deficiencies could be used under s 8 of the Act as regs under that provision are to fix to issues of retained EU law
legislation.gov.uk/ukpga/2018/16/…
Read 13 tweets
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George Peretz QC🏴󠁧󠁢󠁥󠁮󠁧󠁿🏴󠁧󠁢󠁷󠁬󠁳󠁿BL🇮🇪
@GeorgePeretzQC
Discussion of Barnier’s proposed approach to backstop (dedramatised checks) seems to have forgotten an important fact: section 55 of the Taxation (Cross Border Trade) Act 2018 means the PM can’t agree to it. legislation.gov.uk/ukpga/2018/22/…
The enactment of this Act seems generally to have been missed, though the ERG amendment that is now s.55 caused quite a flurry at the time.
It could of course be repealed by an amendment to the Trade Bill (now before the House of Lords) or by the Withdrawal Agreement Bill that will be required to enact any withdrawal agreement.
Read 5 tweets

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