Tomorrow will be a landmark day for 'The Scottish Case'

THERE have been a lot of twists, turns, bumps and forks in the road in the Brexit madness – but tomorrow might be the start of the end of it.

As readers of my pieces will know, I’m a joint litigant in “The Scottish Case”, an action taken together with five other Scottish parliamentarians to the European Court of Justice (ECJ) asking for a ruling on how to revoke Article 50.

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First published in The National, 3 December 2018

I’m proud that Andy Wightman MSP and Ross Greer MSP for the Greens, Catherine Stihler MEP and David Martin MEP for Labour, Joanna Cherry MP and I along with Jo Maugham from the Good Law Project have been able to put the party badges to one side in bringing the case.

The case is a simple question, but with an incredibly significant answer. Under the terms of the EU treaties, Mrs May acting on behalf of the UK triggered Article 50 unilaterally, by writing a letter. The EU states were obliged to accept it and had no say in when or how it was done.

Again under the Treaty, during the two-year period from the trigger the parties have space to negotiate the terms of exit, but if no agreement is found at the end of the two years then EU law stops. But what if during that period lots of new facts come to light proving that the Leave campaign was dodgy? What if it becomes crystal clear that the Leave campaign promises were at best naive and at worst outright lies? What if lots of people change their minds? What if the Commons rejects the deal agreed?

Can the UK revoke Article 50 by a simple letter? Or do the other EU states have a say in it and might they impose conditions? That, in a nutshell, is the question we have asked the European Court of Justice – which they are keen to answer, and we’ll hear from their Advocate General tomorrow at 9am Luxembourg time what the answer is likely to be. In ECJ cases the Advocate General gives an Opinion to the Court, and nine times out of 10 the court will concur with that Opinion in the eventual ruling, so tomorrow really matters.

And we also know the answer. Yes, the UK can revoke Article 50. This has been agreed in all the other submissions to the case from the European Council and the European Commission. They want the court to impose some rights for the other member states, but they agree that Brexit can, even now, be stopped if the UK within its own constitution decides that it wants to.

There has been an industrial-scale spin operation from the Tories and their mouthpieces to pretend that “we’ve done it now, we just need to make the best of it”, which is not only wrong in politics – it is wrong in law. But it has worked with some people, I’m getting regular abuse by email and on social media saying I’m being disloyal and should get behind the Prime Minister and make a success of it. Well no, actually, given she is intent on sailing the ship straight at the iceberg I think we’re better employed finding ways to chart a new course.

Tomorrow a bright new “Exit” sign will appear alongside the unappealing options Mrs May has brought us of deal or no deal. Her deal is nothing of the sort – it is an exit with no detail on the future, and no deal is simply not an option which anyone other than the most irresponsible would contemplate.

I remember well when we brought it forward, there was, it’s safe to say, a fair degree of scepticism that the point needs answered. There have been a lot of twists and turns to the case. We lost initially in the Court of Session, appealed it to the Inner House and won, then the UK Government tried to appeal to the Supreme Court and were refused ... then they did it anyway and the UK Supreme Court itself told them to get back in their box. The hearing in Luxembourg last Tuesday was a delight. The UK has done our job for us with a truculent, ungracious and disrespectful presentation to the Court, which I think in itself went a long way to helping our case.

The ECJ has moved at light speed to deal with the case. They expedited the hearing, before a full bench, and for the Advocate General Opinion to be issued just a week after the hearing is unheard of. The full ruling will follow a couple weeks later, so still well within the likely period at Westminster when the ruling will matter.

I think MPs are vulnerable to the government claims that there is no alternative to Brexit. Like the First World War, generals on all sides who knew further conflict was hopeless but it was easier to carry on, I fear the MPs will nod this hopeless deal through even knowing it will fall apart. We might just find that it will be The Scottish Case that gets us out of this.