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Scottish judge fast-tracks legal challenge to stop a forced no-deal Brexit

A judge at the Court of Session in Edinburgh has fast-tracked a legal challenge to prevent Prime Minister Boris Johnson from proroguing Parliament to force through a no-deal Brexit, following a petition from over 70 MPs and peers.

As a result, Lord Doherty ruled that an urgent hearing of the case should be conducted on 6 September, after the matter was heard in a Scottish court as equivalents in England do not sit over the summer.

The cross-party group, led by Scottish National Party MP Joanna Cherry QC, told Lord Doherty in the Court of Session that a proroguing of Parliament ‘raises issues of profound constitutional importance which is of the upmost concern to the petitioners.’ In addition to the MPs and peers, the Good Law Project – which was set up by Devereux Chambers’ Jolyon Maugham QC (pictured) – also backed the petition.

The decision is the latest in a string of legal challenges against a forced no deal. In December 2018, a group of Scottish parliamentarians succeeded at the European Court of Justice in deciding the UK was able to unilaterally revoke Article 50.

Moving forward, the case will depend on whether the Prime Minister would be in breach of the EU Withdrawal Act 2018 and the Northern Ireland (Executive Formation etc) Act 2019 if he asked the Queen to prorogue Parliament. The suspension of Parliament, in such an instance, would nullify parliamentary attempts to prevent no deal.

The 2019 Act requires Parliament to move motions on progress reports from the Secretary of State on the formation of an executive in Northern Ireland – which has been absent since the political breakdown between the Democratic Unionist Party and Sinn Fein in January 2017. For opponents of the proroguing of Parliament, this is seen as a mechanism to prevent a no-deal departure from the EU on 31 October. However, there is uncertainty as to whether the Act makes the issuing of a proclamation that Parliament should meet mandatory.

The petition continued: ‘Consequences of the United Kingdom leaving the European Union are plainly a matter of enormous importance, constitutionally, economically and as regards the rights of individuals, both EU citizens and others.’

Earlier this month, a Law Society report found that a no deal-Brexit could cause a 10% fall in revenue for the UK legal services market, equivalent to £3.5bn, as well as 10,000 job cuts.

For more, please see Jolyon Maugham’s Disputes perspectives interview.