Scotland’s highest court is to hear a fresh challenge from anti-Brexit campaigners as they seek to have Boris Johnson’s agreed deal with the EU declared unlawful, arguing that it contravenes legislation – originally amended by the arch-Brexiter Jacob Rees-Mogg – that prevents Northern Ireland forming part of a separate customs territory.
Jolyon Maugham QC, the director of the Good Law Project, who has spearheaded a series of court challenges to the UK government over Brexit, is seeking an interdict from the court of session in Edinburgh that would in effect suspend the deal, which parliament is due to debate in a historic sitting on Saturday, as well as a court order to ensure that the full, final text is put before MPs if they do vote on the deal as planned.
Lawyers for Maugham will tell the court on Friday morning the deal contravenes 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”.
Lord Pentland will hear the case and there is a possibility that the court could sit again on Friday evening if there is an appeal.
Maugham’s legal team insist that section 55 is “crystal clear” and that any form of differentiated deal for Northern Ireland will contravene it.
On Twitter, Maugham confirmed that he would ask the inner house of the court on Monday to order the prime minister to apply for an extension to article 50 until 31 January under the Benn Act, or send the letter itself.
Lord Carloway, Scotland’s most senior judge, has already cleared time for an emergency hearing at noon on Monday, as part of an earlier action by Maugham along with the Scottish National party MP Joanna Cherry and Dale Vince, the millionaire owner of the Ecotricity green energy company.
Maugham tweeted: “The prime minister’s desire to meet his short-term political objective of leaving on 31 October, after three and a half years, cannot trump the need for proper scrutiny of a 500+ page document with epochal consequences for Great Britain, Northern Ireland and the EU.”
