Anti-Brexit campaigners claimed victory after Scotland’s highest court decided on Wednesday to wait before ruling whether to force prime minister Boris Johnson to seek a delay to Britain’s EU divorce date if he has not struck a deal in the next 10 days.
An alliance of rebels in Johnson’s Conservative Party and opposition lawmakers voted through a law, known as the Benn Act, last month which requires him to ask for a Brexit delay if there is no deal in place by October 19.
The chances of any agreement with the European Union by next week appear slim at the moment with Irish prime minister Leo Varadkar saying there were big gaps between the two sides.
Johnson has said Britain will leave the bloc on Oct. 31 as scheduled and that he would rather be ‘dead in a ditch’ than ask for any further delay. However, he has also said he would not break the law, without explaining that apparent contradiction.
This week, anti-Brexit campaigners asked Scotland’s Court of Session to issue an order stating Johnson must abide by the Benn Act and to send a letter to the European Union on his behalf if he refused to do so himself, using a power known as ‘nobile officium’.
The court said normally it would have rejected the challenge, and indicated it was reluctant to see judges brought into the ferocious Brexit debate.
‘The court may only interfere in that debate if there is demonstrable unlawfulness which it requires to address and to correct,’ the judge said. ‘At present there has been no such unlawfulness.’
But they said they had decided to delay consideration of the case until October 21, after the date Johnson will have had to ask for an extension if no divorce deal had been agreed.
‘It is clear that there will be changes in circumstances over the next 10 days,’ the court’s three judges said in their ruling.
‘The court will for these reasons continue consideration of the reclaiming motion and the petition to the ‘nobile officium’ until Monday, 21 October, by which time the position ought to be significantly clearer.’
Government lawyers had told the court that Johnson accepted that he must carry out the requirements of the Benn Act, even though he has publicly rejected asking for any further delay.
‘We have extracted from him a promise that he will comply with the law,’ said Jo Maugham, a tax lawyer who was one of those behind the Scottish case.
‘If he breaks that promise, he will face the music - including possible contempt proceedings. And the courts are likely to make good any failure on his part, including signing the Benn Act letter.’
Johnson’s office said it had no comment on the case.
Meanwhile, nearly 1.8 million EU nationals have applied to stay in Britain after Brexit, according to figures out Wednesday.
Some 1,759,400 applications had been received by European Union nationals by September 30, the Home Office interior ministry said, of which 495,700 were received last month alone.
The countries with the most applicants were Poland with 347,300, Romania (280,600), Italy (200,700), Portugal (162,500) and Spain (115,700).
Launched in March, the online system allows EU, wider European Economic Area and Swiss citizens residing in Britain to obtain, free of charge, settled status or pre-settled status.
They have until December 2020 to apply.
The figures are provisional, but show the surge in applications in September as the Brexit deadline approaches.
Britain is due to leave the European Union on October 31, without a divorce deal unless an agreement or a third delay can be negotiated in the remaining three weeks.
Nicholas Hatton, who founded The3Million, which campaigns for the post-Brexit rights of EU citizens in Britain, said the spike reflected heightened worries among Europeans.
‘When you frighten people, they get worried and they try to guarantee their status, and the government has really scared them with the risk of no deal,’ he told AFP.
He also said it was unclear what the consequences would be for people who do not apply by the deadline.
‘The government is still refusing to say what will happen,’ he said.
Of the applications received, 1,524,500 have been concluded, with 61 per cent gaining settled status and 38 per cent holding pre-settled status.
People who have lived in Britain for five years can get settled status; those who have not can get pre-settled status until they reach the five-year mark.
Home secretary Priti Patel said: ‘EU citizens have made a huge contribution to this country and will play a key role in cementing Britain’s status as an outward-looking, global leader after Brexit.’
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