The prospect that the courts will intervene to prevent the UK leaving the EU without a deal has moved a step closer, but a lengthy legal battle still lies ahead.

More than 70 MPs and peers are taking action in the Scottish courts to try to prevent Boris Johnson suspending parliament so he can force through a no-deal departure on 31 October. They argue that such a move would be “unlawful and unconstitutional”.

Lord Doherty, a judge, has scheduled a full hearing in the Court of Session in Edinburgh on 6 September. However, the petitioners are worried the case might not be resolved by 31 October, as it could eventually go to the UK Supreme Court. They fear the government could play for time so the case is not resolved by Brexit day, though its lawyers deny that will happen.

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The cross-party group is taking action in Scotland because the English courts do not sit throughout the summer. It includes Jo Swinson, the new leader of the Liberal Democrats, Joanna Cherry, the SNP’s home affairs spokesperson and Ian Murray, Labour MP for Edinburgh South. 

Boris Johnson’s allies are confident he has the power to set the date of an election, and could therefore call one in early November if MPs opposed to no-deal Brexit trigger an election by passing a vote of no confidence in his government (and no alternative administration is formed in the following 14 days). Parliament would not then sit in the run-up to 31 October as it would be prorogued for the election. Although the move would be hugely controversial, Johnson allies insist the exit date is already enshrined in law.

However, the government cannot discount the possibility that the action will succeed. A case last year ended in a European Court of Justice ruling that the UK could revoke Brexit without the EU’s permission. There is no Commons majority for such a move at present, although it could emerge as a last-minute option to prevent no-deal Brexit if MPs were sitting in October.

The Scottish action might not be the only legal challenge over no deal. Gina Miller, the campaigner, and Sir John Major, the former Tory prime minister, are among those who have threatened to go to court. One option is a judicial review on the grounds that decisions that lack the support of the possible next government are not normally taken during an election campaign. 

Some constitutional experts believe the courts are unlikely to interfere in what they might rule are matters for politicians. But some MPs think the prospect of parliament being shut down would persuade the courts to intervene. One former cabinet minister said: “The courts are more likely to save us from no deal than the Queen is. The Supreme Court is quite an activist body; it may decide that exceptional times require an exceptional intervention.”

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