The UK Government lodged an appeal, which was rejected by the Court of Session. In a legally dubious move, which I fear shows exactly how much respect the UK Government has for Scotland’s distinctive law, they then appealed this decision to the UK Supreme Court. Just on Monday this application to appeal was roundly dismissed by the UK Supreme Court itself. At least their lordships have some respect for the UK’s constitution.
So we’re all set for Luxembourg on Tuesday. The court will hear the case, consider the treaties and give a ruling. We should have it in a few weeks, in time for the meaningful votes in the House of Commons and the European Parliaments.
I can’t predict the outcome, but I think the court can rule in two ways. Either Article 50 is or is not open to revocation. If it is not then surely it should say so on the face of the text, and it does not. If it is open to revocation then the question is whether that can be done unilaterally by the UK acting alone, or by agreement with the other 27 member states. There is a provision in Article 50 that if the exiting member state wants to extend the two-year timetable then it can apply, and the timetable can be extended by unanimous agreement of the 27. The text says nothing about revocation however, hence the question.
The clarity we seek from the court will be useful in many ways. I’m concerned that too many MPs are vulnerable to the “there is no alternative” pressure which will be immense, from business, the UK Government and indeed Brussels. Like the generals during the First World War, when it was obvious to all involved all was pointless but it was easier to continue than call a halt, I fear they could buckle. There are other options if we look a bit harder. The ruling will inform the MPs and MEPs as we deliberate on the entirely false choice of “this deal or no deal” as well as cutting through the spin and letting the public know that there is a way out of this. In all the twists and turns of Brexit it is clear to anyone with eyes to see that there is no good Brexit for Scotland. Our job is to ensure that any avenue to turn it around is properly explored.