Boris Johnson faces another showdown with the courts as his opponents look to force a Brexit extension following Europe’s critical response to the UK’s proposals for a deal.
European leaders gave his fresh Brexit proposals short shrift on Thursday, with senior figures dubbing his “two borders” customs suggestion for Northern Ireland “unconvincing”.
The Prime Minister is expected to continue his efforts on Friday and over the weekend to convince Brussels to show flexibility on his submitted plans.
A spokesman for the PM said his chief negotiator David Frost was currently locked in “technical level” talks in Brussels to determine whether a deal could be struck in the coming days.
But before he commences with any European travel plans, he faces a hurdle closer to home which could take the Brexit timescale out of his hands.
Mr Johnson has continually said, should the EU reject his proposals, that he is prepared to take the UK out without a deal on October 31 – despite the Benn Act committing him to requesting an extension to Article 50 if a deal is not secured following the European Council meeting in less than two weeks’ time.
In a dual legal pincer, Scotland’s highest civil court will hear two cases in the space of five days that could compel Mr Johnson to extend the negotiations.
The legal action – led by businessman Vince Dale, SNP MP Joanna Cherry QC and Jolyon Maugham QC – will first ask the Court of Session’s Outer House to grant an order ensuring Mr Johnson requests an extension to the Article 50 process should he refuse to abide by the terms of the Benn Act by October 19.
On Tuesday the team will go to the Inner House to ask the Scottish judges to use the unique power of “nobile officium” to empower a court official to sign the extension letter if the Prime Minister refuses to do so.
The action will be welcomed by Remain supporters, who fear Europe’s reaction to Mr Johnson’s proposals to replace the Northern Irish backstop have made a no-deal exit more likely.
The PM told MPs in the Commons on Thursday that he had made a “genuine attempt to bridge the chasm” with Brussels by making compromises as time runs out before the scheduled October 31 Brexit date.
But Irish Premier Leo Varadkar said the Brexit plan “falls short in a number of aspects” while his deputy Simon Coveney said “if that is the final proposal, there will be no deal”.
And Donald Tusk, president of the European Council – the body made of up national leaders – said he told Boris Johnson “we remain open but still unconvinced” during talks on Thursday.
Downing Street said the proposals to address problems with the Irish border were the “broad landing zone” and the “basis for discussion” in a conciliatory move after Number 10 sources had previously claimed they represented a final offer to Brussels.
Mr Varadkar said he could not fully understand how the UK envisages Northern Ireland and Ireland operating under different customs regimes without the need for checkpoints.
“We need to explore in much more detail the customs proposals that are being put forward as it’s very much the view of the Irish government and the people of Ireland, north and south, that there shouldn’t be customs checkpoints or tariffs between north and south,” he said.
Mr Tusk also spoke to Mr Varadkar on Thursday and delivered the message “we stand fully behind Ireland”.
In further signs of the resistance to Mr Johnson’s proposals in the EU, the European Parliament’s Brexit Steering Group said it had “grave concerns” about the plan.
European Commission president Jean-Claude Juncker spoke to Mr Varadkar and emphasised that “stable and predictable” measures were needed that “cannot be based on untried arrangements” that would be left to negotiations in a transition period.
“Accepting such a proposal would not meet all the objectives of the backstop,” a commission statement said. “For this reason, further discussions with the United Kingdom’s negotiators are needed.”
Mr Johnson told the Commons on Thursday that while his proposals do not deliver all his Brexit goals they are better options than to “remain a prisoner” of the current situation.
But he accepted that they are “some way from a resolution” on the situation.
Despite a critical reception on the Continent, hope was growing in Westminster that the PM might be able to command a majority for his deal.
The Conservative leader appeared to be building support from the DUP, Eurosceptics within his own party and some opposition MPs wishing to avert a no deal.
But their stances could well alter if Brussels insists on changes, as seems likely.
In what appeared to be a warning shot to would-be rebels in his own party, Jeremy Corbyn said no Labour MP could support the “reckless deal”, which he said would jeopardise the Good Friday Agreement.
Mr Johnson’s plans would see Northern Ireland apply EU rules on goods but stay in a customs territory with the UK.
This would create a regulatory barrier for goods crossing the Irish Sea and create a customs border between Northern Ireland and the Republic of Ireland – but Mr Johnson has insisted there would be no need for checks or infrastructure at the frontier.
The plans require the currently suspended Northern Ireland Assembly to approve the new arrangements, with a vote every four years – something which has caused concern in Ireland.
Stormont voting structures mean a bloc of members of the Legislative Assembly from either the nationalist and unionist community – which includes Mr Johnson’s DUP allies – can veto certain decisions, even if a majority of members back them.
Mr Coveney said: “We cannot support any proposal that suggests that one party or indeed a minority in Northern Ireland could make the decision for the majority in terms of how these proposals would be implemented in the future.”
The Prime Minister’s official spokesman said the four-year limit “is the one that we believe is sensible”.