Anti-Brexit campaigners have filed a legal challenge in the Scottish courts in an effort to compel Boris Johnson to seek an extension to article 50.
The litigation was lodged at the court of session in Edinburgh on Thursday afternoon and is being funded by Dale Vince, the millionaire businessman and political donor who founded the renewable electricity company Ecotricity.
The campaigners have applied directly to the inner house of the court of session, the court’s senior tier, as it has a power unique amongst British courts to provide a legal remedy if one is not available elsewhere, a power known as nobile officium.
The action is being fronted by Jo Maugham QC and Joanna Cherry QC, the Scottish National party MP who led the successful legal challenge where appeal judges in Edinburgh ruled on Wednesday that Johnson had illegally prorogued parliament.
They hope the nobile officium power could mean the court will send the article 50 extension letter on Johnson’s behalf, if he refused to do so.
That would be a very controversial decision by the court: Tory ministers and a Downing Street source have been accused of saying that Scottish judges are biased after they found against Johnson, and a court intervening in this fashion is likely to cause a furore.
Their submission names Johnson in person, and asks the court to force the prime minister to sign the letter seeking an extension to article 50 mandated by the Commons vote on Monday backing an emergency motion tabled by Hilary Benn, the Labour MP.
The so-called Benn Act requires Johnson to get MPs to vote for a new Brexit deal or agree to a no-deal exit by 19 October or if he fails to do so, ask the EU for an extension to article 50 until 31 January 2020.
Maugham said that if Johnson refuses to seek an extension, as he has repeatedly suggested he will, they would ask the court to making the extension application required by the Benn Act on the prime minister’s behalf.
“The inner house of the court of session has a special and versatile jurisdiction – its nobile officium – which it can use to, in effect, per procurationem or ‘pp’ any letter that the prime minister refuses to send,” he said. “The rule of law is not a thing to be grifted – not even by the prime minister.”
Vince said on his Facebook page he had funded the action through Maugham’s Good Law Project campaign group. “For months I’ve watched in horror at what’s going on,” he said.
“It feels like we’re on the verge of law and order breaking down in our country. A no-deal Brexit will cause enormous national harm and would be illegal, so we hope the court will order Boris Johnson must abide by the law.”
Nicola Sturgeon’s spokesman said the prime minister had no choice but to comply with the Benn Act. “It is pretty outrageous that he or anybody speaking on his behalf would seek to suggest they would try and flout the law,” he said.
He added that the EU had again made clear on Thursday morning there was no new offer tabled by UK. “All this talk of trying to get a deal appears to be just so much window-dressing and the only strategy we can ascertain from Boris Johnson is he is trying to run down the clock.”
