Tuesday’s court action opened as Johnson, who insists the UK must leave the EU on October 31 with or without a deal, was accused of engaging in a “stupid blame game” by European Council President Donald Tusk.
Downing Street overnight claimed the EU had made a Brexit agreement “impossible”, with an anonymous briefing to the conservative Spectator magazine insinuating the UK would seek to undermine the world’s largest trading bloc if it were “forced” to remain a member by virtue of a deal not having been agreed.
“[EU member nations] supporting delay will be seen by this government as hostile interference in domestic politics,” the unnamed source told the magazine, edited by Johnson himself between 1999 and 2005.
It marked a change in rhetorical tone and provoked a furious response from Tusk, who accused the prime minister of jeopardising the future security of the EU and the UK.
“Boris Johnson, what’s at stake is not winning some stupid blame game,” he wrote on Twitter.
“At stake is the future of Europe and the UK as well as the security and interests of our people. You don’t want a deal, you don’t want an extension, you don’t want to revoke, quo vadis?”
At the heart of Tuesday’s political drama was an early morning phone call from German Chancellor Angela Merkel to Johnson, regarding the UK’s suggestion to have two borders around Northern Ireland – turning the existing (invisible) border with the Republic of Ireland, an EU member, into a formal customs border (albeit with physical checks and infrastructure some distance from the border itself), with a regulatory border in the Irish Sea, allowing Northern Ireland to remain in the EU’s “single market”.
“Downing Street say Merkel said to Boris Johnson: ‘Your plan is never gonna work’,” said Al Jazeera’s Laurence Lee, reporting from London.
“They say she said Northern Ireland has to stay in the customs union, in this trade bloc, to protect the integrity of an open Ireland – forever. Now that’s entirely unacceptable to Downing Street, and they have been briefing that, effectively, it is dead – they’re saying that there is no chance, if this is the EU’s view, not only of a deal now, but of a deal ever.
“It looks very much like they have started to reach the end of the road.”
Amid the dramatic escalation in the war of words between London and Brussels, there was apparent alarm among some UK ministers at the prospect the government could withdraw security cooperation with the EU if the bloc fails to offer a new divorce deal before October 19.
That is the deadline that has been set under contentious legislation passed in the Parliament of the UK with the assistance of a “rebel alliance” of Conservative MPs, at which point the prime minister is legally obliged to request a delay.
“I am clear that any threat on withdrawing security co-operation with Ireland is unacceptable,” said Northern Ireland Secretary Julian Smith.
Johnson faces ‘Nob-Off’ case
In Scotland, a fresh legal case was being heard on Tuesday under little-used “Nobile Officium” legislation – known as “Nob-Off” proceedings – in which petitioners are asking that a court send the Brexit delay request to the EU if Johnson refuses.
A similar court action failed on Monday, after the government last week provided legal assurances that it would comply with the law and make the request – despite statements to the media and on social media, including by Johnson himself, suggesting that they would not.
The court’s ruling made it clear there would be very serious consequences for any government ministers or their lawyers who failed to comply with what they had told the court they would do.
If [Boris Johnson] doesn’t [comply with the law], then we will face a genuine constitutional crisis and we will have to pick up the pieces then
Jolyon Maugham QC
In the court in Edinburgh on Tuesday, the government argued that it had already undertaken to follow the law in its submissions to the case heard last week. Furthermore, the deadline had not yet been reached, and so it would be inappropriate for the court to pass judgment at this time.
Campaigners argue that leaving a court ruling until after October 19 would cause “massive” legal uncertainty; to wait until the deadline had passed would spark serious administrative and practical obstacles to enacting a legal remedy ahead of Britain crashing out of the EU by automatic operation of law on October 31.
But they admitted the court was likely to regard the government’s promises as sufficient – “for the moment”.
“We will get a decision tomorrow,” Jolyon Maugham, one of the senior lawyers bringing the case, told reporters outside the court.
“My guess is that they’re going to hold the matter over until October 21. I think they will want to see what actually happens before they get into this difficult territory. None of us want to have a prime minister who is facing contempt of court proceedings. I want the prime minister to comply with the law – and everybody should want the prime minister to comply with the law.
“And if he complies with the law, there will be no need for any actions to be taken by the court or by anybody else on the 21st. But if he doesn’t, then we will face a genuine constitutional crisis and we will have to pick up the pieces then.”
Analyst Michael Gray, who was watching proceedings at the court, tweeted: “Essentially, petitioners are hopeful suspended Court of Session judgment could act as a ‘Scottish backstop’ to ensure the law is complied with & No Deal Brexit averted”.