Remainers’ LOSE legal challenge at Scotland’s highest civil court after claiming Boris Johnson’s new Brexit deal was unlawful and should not be put to a vote when MPs sit tomorrow
- At Court of Session in Edinburgh lawyers argued the proposed deal breaches law
- Remainer barristers argue Johnson’s deal would mean different laws in NI breaching Section 55 of the Taxation (Cross-Border Trade) Act 2018
- But the government insists the legal action is an interference with Parliament
- Rejecting the petition, Lord Pentland said it was ‘of very-doubtful competency’
Arch-Remainer Jolyon Maugham QC arriving at the Court of Session in Edinburgh
Remainers have lost a legal challenge at Scotland’s highest civil court after claiming Boris Johnson’s new Brexit deal was unlawful and should not be put to a vote when MPs sit today.
A legal challenge argued the proposed deal negotiated with the EU breaches UK law by leaving Northern Ireland in a separate customs arrangement to the rest of the country.
But Government lawyers defended the deal and claimed the legal action is a ‘direct and manifest interference with Parliament’.
On Friday evening, Lord Pentland rejected the campaigners’ argument that the agreement was unlawful, writing in his verdict that the petition was ‘of very-doubtful competency’.
The judge added: ‘The orders sought would unquestionably interfere to a major extent to the proposed proceedings in Parliament.
‘I cannot see that it would be right for Parliament to be invited to consider a draft treaty which the court had suspended on the basis that it was unlawful.
‘It is a cardinal principle of constitutional law that the courts should not intrude on the legitimate affairs and processes of Parliament.
‘I consider that it should be left to Parliament to proceed in relation to the draft withdrawal agreement in the manner and according to the procedures that Parliament considers most appropriate.’
The petition was being heard in the Court of Session in Edinburgh – Scotland’s highest civil court – which previously ruled Mr Johnson’s prorogation of Parliament was unlawful.
Aidan O’Neill QC, acting for the petitioners, told the court on Friday the proposed Brexit deal would mean a ‘continuing regime of EU law applicable to Northern Ireland’ – contrary to Section 55 of the Taxation (Cross-Border Trade) Act 2018.
The challenge has been brought before Lord Pentland at the Outer House of the Court of Session by the Good Law Project, led by arch-Remainer barrister Jolyon Maugham QC.
Mr Maugham paused to speak to pro-EU demonstrators outside the Scottish court on Friday
Who is the barrister Jolyon Maugham QC and what cases has he brought on Brexit?
Jolyon Maugham QC is a remain-backing barrister and newspaper columnist who has been behind a string of legal challenges to Brexit.
He backed Gina Miller’s High Court battle to force the Government to give MPs a vote on triggering Article 50 and formally triggering Brexit.
He spearheaded a campaign to try to mount a legal challenge to see if Brexit can be reversed.
He had planned to take the case to the Dublin courts but abandoned it after they signalled they would not refer it to the ECJ.
And he is also the brains behind the latest challenge for a group of British expats to try to keep all their EU rights after Brexit.
The lawyer is also an occasional columnist for the liberal, Remain-baking Guardian newspaper.
He said this would breach the Act’s terms by creating different customs rules in Northern Ireland to the rest of the UK, leaving the deal void and unsuitable to be put before Parliament.
Mr O’Neill said: ‘What we have before us is a void agreement that has been presented publicly and to Parliament as valid.
‘The agreement which was presented yesterday is void; is of no effect as a matter of law.
‘If the interim suspension is granted on the basis that the agreement as a matter of national law is void, then there’s no agreement which can be laid before the House.’
The Prime Minister and European Commission President Jean-Claude Juncker on Thursday announced the two sides had come to an agreement on a Brexit withdrawal deal, ahead of a crucial EU summit in Brussels.
EU leaders then approved the deal, and MPs are expected to vote on it on Saturday.
When asked what the effect of granting the petition would be on Parliament sitting on Saturday, Mr O’Neill said it could potentially repeal the law which currently prevents Northern Ireland being part of any different customs arrangements to the rest of the UK.
In Brussels on Thursday, Mr Johnson delivered an emphatic message to MPs, saying: ‘It hasn’t always been an easy experience for the UK’
The Prime Minister is said to have begin attempts to entice Jeremy Corbyn’s backbenchers from Leave areas in the North and Midlands to side with him and get the UK out of the EU
He added: ‘Parliament is the supreme and sovereign body, it can – if so advised – pass or vote on legislation which would repeal the relevant provision: Section 55 of the Taxation Act.
‘It could retrospectively validate the agreement that has been reached.
‘All this court can do is apply the law as it currently stands.’
Gerry Moynihan QC, acting for the Government, described the legal challenge as a ‘direct and manifest interference with Parliament’ and revealed the House of Commons Speaker’s counsel had written to both parties urging them not ‘inhibit’ bringing a matter before Parliament.
Mr Moynihan said suspending the agreement would prevent the deal being brought before Parliament, acknowledging the Government would not be able to claim a deal had been done or agreed if the court ruled the agreement unlawful.
‘It would be utterly futile to lay a copy of that non-agreement before the House,’ he said.
‘It is a gross intrusion into the separation of power,’ he said of the legal challenge, which he claimed was ‘simply incompetent’.
He argued Northern Ireland would remain in the UK’s customs territory because ‘a substantial part’ of trade would still be with the UK.
Parliament is due to vote on the deal today but Mr Johnson may struggle to get it through as the Democratic Unionist Party has voiced opposition to the agreement.
Liberty loses bid for speedy court hearing
Earlier yesterday at the Court of Appeal in London Liberty lost a bid to have an urgent hearing of its case against Prime Minister Boris Johnson over the Brexit deadline.
Lawyers for the civil rights organisation argued today that its legal challenge, brought to ensure Mr Johnson ‘acts within the law’, should be heard immediately.
But their application for an urgent hearing was rejected by Court of Appeal judges.
Liberty asked for an immediate hearing of its case against Mr Johnson, which it is bringing to make sure he complies with the European Union (Withdrawal) (No 2) Act, commonly referred to as the Benn Act.
The Act requires the PM to seek an extension to the current Brexit deadline of October 31 if no deal is reached with the EU, and approved by Parliament, by Saturday.
The organisation’s application for an expedited hearing was previously rejected by Mr Justice Supperstone, a High Court judge, following consideration of the court papers.
Richard Hermer QC, for Liberty, said: ‘It is at least being considered by the defendant that he is fully entitled, notwithstanding the terms of the Act, to seek to procure a refusal from the European Council.’
Mr Hermer argued that any steps taken by Mr Johnson which are ‘intended and likely’ to result in the European Council refusing to agree an extension to the Article 50 period are likely to result in ‘irreversible’ consequences.
He added: ‘Accordingly, in order to avoid irremediable consequences of fundamental constitutional importance, it is essential that the lawfulness of those steps is determined before such irreversible consequences are caused.
‘If the application is not considered until after October 19, it will be too late for the court to grant any effective relief.’
However, the application was refused by the Lord Chief Justice Lord Burnett, Master of the Rolls Sir Terence Etherton and President of the Queen’s Bench Division Dame Victoria Sharp.
Lord Burnett said: ‘It is clear to us that Mr Justice Supperstone made no error of principle or acted outside the proper limit of his judicial discretion in making the case management decision under challenge.
‘We will give our full reasons in due course in writing.’
No date has been set for the hearing of Liberty’s High Court challenge but it could be as early as Monday.
Liberty announced it was bringing the challenge in September, saying that it was ‘gravely concerned’ by media reports which suggested Mr Johnson intended to flout Brexit legislation.