Prime Minister Boris Johnson would go to the Supreme Court to win the right to take the UK out of the EU in a clean break on October 31st, according to reports.
The Benn Act forces the prime minister to seek an extension of Article 50 — delaying Brexit — until January 31st, 2020, if European and British parties cannot agree on an exit treaty by October 19th.
However, government sources speaking to The Telegraph have said that the prime minister wants to persuade judges to let him deliver Brexit on Halloween, as Johnson has promised.
One source told the newspaper Number 10 is looking for a legal mechanism for Mr Johnson to “at least say five days before [Oct 31] ‘I am literally not going to write that letter’.
“The real drama would be if Boris were in court calling it ‘the Surrender Act’. He would almost be happy if the judge said ‘you can’t call it that’.”
Such a case would be the second in as many months where the government appears before the Supreme Court, which is the highest court in the UK. On September 24th, the Supreme Court ruled that Johnson’s suspension of parliament was “unlawful”, siding with anti-Brexit campaigners and lawmakers.
On Monday, the Scottish Court of Session is to decide if Mr Johnson can be forced to write a letter to EU leaders asking to extend Article 50. Legal action has been taken by anti-Brexit campaigner and lawyer Jolyon Maugham QC and SNP MP Joanna Cherry, both of whom were involved in the case against prorogation. Green entrepreneur Vince Dale has financed the action.
The campaigners seek to force Mr Johnson to send the letter or for the clerk of the Court of Session to sign it on his behalf. They also want to ban the prime minister from asking EU leaders to veto the extension, which must be granted unanimously by the other 27 Member States. The court will also decide whether, in failing to abide by the Benn Act, Mr Johnson can be punished, including by being fined or even imprisoned.
On Wednesday, Prime Minister Johnson sent EU leaders a new Brexit deal which removes the Irish backstop. If triggered, the backstop will lock the UK in regulatory alignment with the bloc after the transition period.
Brexit secretary Stephen Barclay wrote in The Telegraph on Saturday that Mr Johnson’s government “won’t back down on Brexit”.
Mr Barclay wrote that “our proposals keep the border open while allowing us to control our own trade policy after the end of the transition period”.
“We hope the EU will come to the table in the spirit of compromise and match our creativity and flexibility,” the Brexit secretary added.
Mr Johnson has warned the French president, Emmanuel Macron, that the EU should “not be lured into the mistaken belief that the UK will stay in the EU”. President Macron has said that an EU decision on the deal will come by the end of this week.
The prime minister is set to meet with the French president and German Chancellor Angela Merkel in the coming days to convince them to back the plans. On the 17th and 18th of October, Mr Johnson will be at the European Council summit to finalise the deal. However, if no deal is agreed by October 19th, the prime minister is facing the outcome of the Benn Act which forces him to delay.