The court of appeal in London has refused the human rights organisation Liberty permission to have heard an urgent application seeking to prevent Boris Johnson crashing out of the EU without a deal.
Three senior judges, the lord chief justice, Lord Burnett of Maldon, the master of the rolls, Sir Terence Etherton, and president of the Queen’s bench division, Dame Victoria Sharp, agreed that there was no need for the matter to be considered by the English courts immediately.
Richard Hermer QC, representing Liberty, said delaying any hearing until next week would allow the prime minister over the weekend – if parliament rejects a deal – to persuade the EU to refuse an extension to UK membership.
The courts, he said, should not abdicate their responsibility and had a “constitutional duty to be seized of the matter”. If the issue was left until after the weekend, then Johnson might cause “irremediable damage” to the UK by frustrating the aim of the Benn act, which is intended to prevent a no-deal Brexit. The Benn act comes into effect if parliament fails to agree a deal by the end of Saturday.
But Sir James Eadie QC, for the prime minister, said it was premature to hear the application before the vote in parliament on Johnson’s new deal.
“There will be a really significant turn of the kaleidoscope on Saturday,” he said.
“It would be inappropriate for the court to interfere in the process. Everyone on the government’s side has been dedicating their efforts to get to a position of a deal. The prime minister’s opposition to the Benn act and to an extension is extremely well known.”
If the deal is passed, Eadie said, it would be “unnecessary for the court to engage in this exercise … [since] parliament may well approve the deal done with the EU.
“It’s fanciful to suggest that the Europeans are not entirely aware of the fact that this act exists and of the government’s thorough-going opposition to the principle of an extension.”
After hearing argument for less than two hours on Friday, the three senior judges unanimously rejected Liberty’s request for an urgent hearing in full later in the day. Burnett said they would give their reasons at a future date.
If the deal is rejected in parliament on Saturday, both Liberty and the Independent Workers’ Union of Great Britain (IWGB), which has submitted a similar claim, could return to the courts next week.
Martha Spurrier, Liberty’s director, said: “This fight continues because our democracy is at stake. Today in court the prime minister confirmed our worst fears: that he thinks he can take steps which we say would subvert the law. No one is above the law and Liberty will stop at nothing to hold the government to account.
“This case has nothing to do with Brexit. It is about ensuring the government – whoever it is, or whatever its intention – obeys the law. Liberty is and always has been fiercely independent and that’s what makes us the right people to continue this fight.”
Meanwhile, Scotland’s highest court also rejected a legal bid to argue that Johnson’s new withdrawal agreement to leave the EU involves a “clear and unequivocal breach” of national law.
The basis of the legal challenge by the anti-Brexit campaigner Jolyon Maugham QC was that the newly agreed deal contravened legislation – originally amended by hardline Brexiters to stymie the backstop arrangement – that prevents Northern Ireland forming part of a separate customs territory.
Sitting before Lord Pentland, the court of session in Edinburgh heard from Aidan O’Neill QC that the provisions of the new withdrawal agreement made it plain that Northern Ireland would form part of a separate customs territory, that of the EU, and that this breached section 55 of the Taxation (Cross-border Trade) Act 2018, which states that it is “unlawful for Her Majesty’s government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain”.
Noting that section 55 – the result of an amendment sponsored by the hardline European Research Group – “intended to tie the government’s hands”, O’Neill added that whether Northern Ireland formed part of a separate customs territory after Brexit was “a question of objective law” and it “can’t be plainer” that the UK government had acted unlawfully.
But Gerry Moynihan QC for the UK government argued the petition was beyond the competency of the court, saying it was inviting the court to “inhibit” consideration of the agreement.
“This is a manifest attempt to interfere with proceedings in parliament,” he told Pentland. He added that a substantial part of Northern Ireland’s trade would remain part of the UK’s customs territory and therefore section 55 would be complied with.
Moynihan also presented a letter from the Speaker’s counsel, which warned that Maugham’s petition was asking for action that would “inevitably involve interference on proceedings in parliament and as a breach of the separation of powers”.
On Friday evening, 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.”