How the Scottish Court of Session became the main arena of the touring Brexit circus

, by Juuso Järviniemi

How the Scottish Court of Session became the main arena of the touring Brexit circus
Pro-EU activists have been a regular occurrence around West Parliament Square in Edinburgh this autumn. Edinburgh4Europe

TV cameras, busy-looking journalists and pro-EU activists have been a semi-regular occurrence around West Parliament Square in Edinburgh this autumn. While Boris Johnson attempts to carry out Brexit against the Westminster Parliament’s will, the endgame of the Brexit battle is largely playing out in the courts. In this legal Russian roulette, the Scottish Court of Session is getting a big part of the spotlight. Juuso Järviniemi summarises recent Brexit developments.

Lying to the Queen, dying in a ditch

At the end of August, Boris Johnson’s dilemma was that the UK Parliament would likely legislate against a no-deal Brexit, thwarting his promise to leave the EU on Halloween “do or die”. So he found a clever way out: shutting down Parliament for five crucial weeks, so MPs couldn’t speak their mind. On 28 August, Johnson asked the Queen to ‘prorogue’ (suspend) the Parliament for a break between two parliamentary sessions. He claimed that his motivation for starting a new parliamentary session at this moment was to be able to introduce a new legislative agenda.

The plan backfired. In early September, in the one week the MPs had before Westminster would close, the Parliament managed to rush through a law that requires Boris Johnson to request a new Brexit extension if he fails to reach a deal. The so-called Benn Act, passed on 6 September, mandates Johnson to send the extension request no later than 19 October.

Just one full day into the suspension, Scotland’s highest court ruled it illegal. Effectively, the court held that Boris Johnson had lied to the Queen about his motivations for closing the Parliament. Scottish courts have been fertile ground for lawyers attempting to hold the UK government accountable on Brexit, given the fact that the Scottish legal system is different from the English one. Around the same time as the Scottish ruling was handed down, the English High Court refused to rule the suspension illegal, once again illustrating the differences between the UK’s coexisting legal systems.

On 24 September, in a landmark ruling, the UK Supreme Court upheld the Court of Session’s ruling. By the following day, MPs had already returned to Westminster’s green benches.

Ever since this episode, Boris Johnson has stoked suspicion that he would not comply with the Benn Act. Repeating his pledge that the UK will leave the EU on Halloween, Johnson held on to his claim that he would rather “die in a ditch” than ask for a new Brexit extension. Against this background, and throughout October, Scottish courts have been considering whether and how the legal system can ensure the Prime Minister complies with the law this time.

“Not above the law”

The prorogation case (which eventually became Miller (No. 2)) was brought to the Scottish court by campaigners including the Scottish National Party MP Joanna Cherry and the lawyer Jolyon Maugham QC, famous for crowdfunding his work. This week, the same claimants have asked the court to force Johnson to comply with the Benn Act by issuing a court order for him to request a Brexit extension, and by having a court official sign the Brexit extension letter if Johnson won’t do it himself. The latter procedure, known as ‘nobile officium’, is a special feature of the Scottish legal system.

On this occasion, however, the court has been more cautious, adopting a ‘wait and see’ approach. On Monday this week, it ruled that a court order – which could lead to Johnson being imprisoned if he doesn’t ask for an extension – would be unnecessary because the government promised to the court it respects the Benn Act. As for the ‘nobile officium’ claim, the court has decided it will return to the matter on 21 October.

In other words, the courts have given Boris Johnson the chance to comply with the law by 19 October. If, however, Johnson chooses to break the law, the judges will be back in business. Given Boris Johnson’s history of deceiving the Queen, of leading the Vote Leave campaign that broke electoral law, and of being fired as a Times journalist for making up a quote, it would not be a surprise if he decided to once again disregard the law for personal gain.

In other words, 21 October looks set to be another busy day in the courtyard near West Parliament Square. Judges will have to sit down and prove that in the United Kingdom, the law still prevails over the authoritarian whims of a deceitful Prime Minister. Within ten days, other EU member states’ leaders will then have to decide whether Brexit should be extended – amid speculation that Boris Johnson is colluding with Hungary to stop a new extension. (A week ago, the Hungarian Foreign Minister Péter Szijjártó was seen leaving the Cabinet Office, a key UK government building.)

There’s never a dull moment in British politics. With Parliament awaiting a Brexit extension before a new election can be called, it’s the courts that are hard at work. After Monday the 21st, it is likely that the next arena in the touring Brexit circus will once again be a meeting between Member States.

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