On Monday 10 December at 9am CET, the Court of Justice of the European Union provided the UK government with a clear exit from the madness that is Brexit. The ruling answered a simple question, but an incredibly significant one. Under the terms of the EU treaties, Mrs May, acting on behalf of the UK, triggered Article 50 unilaterally, by writing a letter. 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 House of Commons rejects the deal agreed?
What I and my co-litigants wanted to know was this: 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?
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 month was a delight. The UK did our job for us with a truculent, ungracious and disrespectful presentation to the Court, which I think 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, let alone for us to get the full ruling only one week later, the day before the non-vote in Westminster.
And now we know the answer. Yes, the UK can revoke Article 50 and it can do so unilaterally.
This possibility exists for as long as the Withdrawal Agreement has not entered into force or, if no agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired. Any revocation must follow a democratic process in accordance with national constitutional requirements.
The ECJ has provided a bright new “Exit” sign alongside the unappealing options Mrs May has brought us: 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 worst irresponsible would contemplate.
I think our MPs are vulnerable to pressure from the UK government that “there is no alternative, we must do this”. Like the First World War Generals on all sides who knew that further conflict was hopeless but it was easier to carry on, I fear the MPs will nod this flawed and hopeless deal through even in the knowledge that it will fall apart. However, thanks to the lightning speed of the ECJ we are now clear that a third - and in my mind - vastly superior option is available to us and if MPs are eventually given the option of having a meaningful vote on this, it might just be that “The Scottish Case” puts an end to this madness for good.
The Judgment can be found here.
