Several UK government sources have told ‘The Daily Telegraph’ that the prime minister is willing to go to the Supreme Court in an effort to avoid having to write a letter asking for a delay to Brexit, as set out in the Benn Act.
It raises the possibility that Mr Johnson could give evidence in the court case in an attempt to persuade judges in person against forcing him to ask the EU for a Brexit delay.
A senior government source said it was vital that Mr Johnson was forced to write the letter delaying Brexit rather than agreeing to do so voluntarily.
The source said No 10 needed to find a legal mechanism to allow the prime minister to “at least say five days before (October 31) ‘I am literally not going to write that letter'”.
They added: “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’.”
Mr Johnson told French President Emmanuel Macron EU leaders should “not be lured into the mistaken belief that the UK will stay in the EU” after the end of this month.
Mr Johnson spoke with Mr Macron by phone yesterday to make clear that his offer was the final opportunity for a deal.
Mr Johnson made clear that if this were not possible, the EU must match the compromises that the UK has made with its new offer to keep Northern Ireland in the single market, but take it out of the customs union.
A spokesman for the Élysée Palace said Mr Macron told Mr Johnson that negotiations should continue swiftly in the coming days with (EU Brexit negotiator) Michel Barnier’s team, in order to evaluate by the end of next week if a deal is possible, while respecting the principles of the EU.
A senior No 10 source said: “This is the chance to get a deal done: a deal that is backed by parliamentarians and a deal which involves compromise on all sides.
“The UK has made a big, important offer but it’s time for the commission to show a willingness to compromise too. If not the UK will leave with no deal.”
Downing Street warned Brussels it would be a “historic misunderstanding” to believe the so-called Benn Act could prevent a no-deal Brexit – despite being designed to do so. If a deal is not reached by October 19, then Mr Johnson is legally required to seek an extension.
Meanwhile, the idea of giving the DUP an effective veto over Northern Ireland’s future relationship with the EU could be watered down, the UK’s Brexit secretary said.
Stephen Barclay opened up the possibility of finding a better mechanism for allowing politicians in Northern Ireland to have a say over the region’s future.
It comes after a major backlash from other parties in the North, as well as the Irish Government, to proposals that would see Stormont vote every four years on whether to stay aligned with the EU’s single market rules.
The current set-up of the Northern Ireland Assembly, which hasn’t sat in over two years, would allow the DUP to control the decision.
But Mr Barclay said: “The key issue is the principle of consent, that’s why the backstop was rejected three times, that was the concern in terms of both sides in Northern Ireland not approving of the backstop.
“So the key is the principle of consent, now of course in the mechanism, as part of the intensive negotiations we could look at that and discuss that.”
The comments open up a potential line of discussion for Taoiseach Leo Varadkar and the British prime minister who could meet later this week.
The leader of the UK Labour Party, Jeremy Corbyn, is set to meet the leaders of other opposition parties early this week to decide on their next steps towards avoiding a no-deal Brexit.
“It’s already clear that Johnson’s proposal would slash food safety and standards, exposing us to – among other things – chlorine-washed chicken and hormone-treated beef, currently banned under EU standards. That’s what a Trump deal Brexit would mean in practice,” said Mr Corbyn.
Suggestions the UK could try to disrupt the workings of the EU if it was forced into an extension have been rejected by MEPs.
MP Steve Baker even suggested the Brexit Party’s Nigel Farage could be nominated as the UK’s commissioner.