Some editions of today’s Telegraph quote extensively from my piece on their front page.
But, so that the full text can be read, I reproduce my piece following.
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In just over a fortnight the Supreme Court will hear the most important legal case our generation will ever know. The Scottish Government will be there, represented by the Lord Advocate, Sir James Wolffe.
But what will he say?
The question at the heart of the case is whether Theresa May can remove rights granted by Parliament without first obtaining Parliament’s permission. That – or so the argument runs – is the effect of triggering Article 50, the mechanism by which we start divorce negotiations with our EU partners. Once the Article 50 process is started, rights will be lost without Parliament’s consent. Rights that cannot be wrenched back.
Although the legal argument is couched in terms of individual rights, it has particular resonances for Scotland – and Wales too which also plans to intervene. It may well be wrong to, as the First Minister put it:
bypass the Scottish parliament and take steps that will involve fundamental changes to the devolution settlement with no proper scrutiny here in Scotland.
But that is precisely what Theresa May intends to do.
Unless.
You see, there is one wrinkle in the argument.
When the case came before the High Court in London, it suited everyone to pretend that triggering Article 50 would have the inevitable consequence that we leave the EU. That the bullet, once fired, could not be called back to the chamber. It suited the Pursuers, because it made their legal arguments easier. And it suited the Westminster Government because it removed any legal impediment to them pursuing exactly whatever course they chose to.
The Pursuers pretended. The Westminster Government pretended. There was a cosy consensus. But should the Scottish Government pretend?
We don’t know if an Article 50 notification can be withdraw. What we do know is that a lot of very well placed people believe it can be. Lord Kerr of Kinlochard, who drafted it, thinks so. So does Donald Tusk, the President of the EU Council. And so does Sir David Edward, former judge of the Court of Justice of the EU. But the only view that matters is that of the Court of Justice itself.
Nicola Sturgeon can explode that cosy consensus. She could instruct the Lord Advocate to seek a reference to the Luxembourg court so that it can answer the question. And she should.
A decision that a notification can be revoked enables Scotland to wrest back control of its future.
If triggering Article 50 doesn’t commit us to leaving the EU, the SNP can hold out a realistic threat, alongside the other opposition parties, of voting down any deal negotiated by Theresa May that ignores Scotland’s interests. Voting down the deal – and here’s the important bit – would mean withdrawing the Article 50 notification and Remaining. ‘Deliver for Scotland what is right,’ Nicola Sturgeon could say, ‘or our MPs will vote against Leaving.’
And although that vote would almost fall in the House of Commons today, who knows how Brexit will look in two years’ time? It is possible that the “sunlit uplands” promised by Boris Johnson will hove into view – but it may also be that they dissolve to mere mirage.
If in two years’ time the evidence shows that prosperity has deserted the United Kingdom in anticipation of a Hard Brexit, MPs will vote against Brexit. They will vote to Remain because that is what their constituents will demand. And the Brexiteers fear that.
A decision by the Court of Justice that Article 50 can be revoked leaves the door ajar to the whole United Kingdom remaining. But it also gives Nicola Sturgeon a real bargaining chip in her negotiations with Westminster. Deliver what is right for Scotland, protect our interests, or we will vote to keep the whole United Kingdom in the EU.
Nicola Sturgeon has accused Theresa May’s Government of “disrespecting the whole devolution settlement” by taking a decision of “this magnitude and with this degree of impact on our devolved responsibilities… without the Scottish parliament being consulted.”
And she is right to demand proper respect for the will of the Scottish people.
And this is how she gets it.
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Waiting for Godot 
It is precisely for this reason that I think the ECJ probably would rule that Article 50 is irrevocable. It seems to me that there really is no way of deciding that question based on the wording in the Lisbon Treaty itself, so it would be a matter of looking at the intent of Article 50. If the purpose of Article 50 is to establish a formal, time-bounded process for withdrawing from the EU, then it does not serve its purpose if departure can be held up indefinitely by shenanigans in the leaving country’s Parliament.
And it’s not just Holyrood which could hold things up indefinitely – Westminster could too, because if Article 50 was triggered by the government on the understanding that it was irrevocable, Parliament would still need to repeal the European Communities Act before it could be said that we had fulfilled our constitutional requirements for withdrawal. Such a situation could cause huge instability for us and for the EU27.
So I think it is likely that, if asked, the ECJ will say that Article 50 is irrevocable. . . in which case the government will have no real basis for an appeal, and will lose in the Supreme Court.
Scotland: Voted Remain, Taking Control. The Walloonians would be proud.
I believe the ECJ would probably rule that Article 50 may be revoked by the nation that invokes , andit for much the same reasons as Tristan Jakob-Hoff. Several legal commentators have pointed out that Article 50 is constructed to make the process of withdrawal quite self-destructive for the nation that triggers it. I imagine the political reason for this is deterrence (which protects the EU) rather than punishment (which does not.) A key part of that deterrent is to allow the EU to say, at the end of the two-year negotiations, “you don’t have to leave on the terms you’ve got: you could simply revoke.”
I voted remain for the UK to remain in the EU and I live Scotland. At no point was it my intention to have Sturgeon and her band of nation wreckers pretend my vote was in support of her or her party. I know this to be true of many, many people who voted remain from Scotland.
The will of the Scottish people was not for Scotland to remain in the EU. It was for the UK to remain in the EU, for that was the question on the ballot. There’s a subtle difference. They nearly pulled it off too.
Scotland held a referendum on whether it wished to remain in the UK or not. It decided to stay. The UK then held a referendum on whether to stay or leave the EU. It decided to leave. The people were asked and they answered. End of conversation.
I suspect that if the English were asked if they wanted the Scots to remain part of the UK, with not only the highest grants within the UK but endless demands for more and more, there would be an overwhelming majority to get rid of them. Personally, I would rebuild Hadrian’s Wall and see how the Scots got on without passports. They would all have to remain in Scotland. Perfect. If they love it so much, they can live there.
As for Article 50, this is something of a red herring. As a sovereign government, we could repeal the European Communities Act 1972 and that would be that. Instead, we must ask the EU permission to leave and the EU will do what it is really good at – tie the thing up in endless administrative knots until nobody knows which way is up.
When the USSR collapsed, the Russian Federation rose in its place. As soon as the Baltic states became sovereign governments once more, rather than go through the very expensive and convoluted leaving process, they simply repealed the legislation that held it together in the first place. Job done. What on earth possessed them to trade in the Kremlin for Brussels is a complete mystery.
As for rights being irrevocably lost, that is one of the primary reasons for leaving the EU. We have been sucked into an undemocratic, supra national body for 40 odd years and have finally woken up to just how awful the thing is. It has removed many of our rights of self determination on the one hand and forced a load of unwanted, damaging legislation upon us on the other.
This whole argument is in defiance of the will of the people. David Cameron promised to activate Article 50 the day following a vote to leave. His economic meltdown and WW3 did not materialise, unsurprisingly. Nor did his promise about leaving. Equally unsurprisingly.
I love Kevans command of geography. I’d be happy to take our independence along with the significant chunk of territory north of the Newcastle to Whitehaven line he so willingly throws away. A central plank of the assertions made by the Better Together campaign was that the only way to stay in the EU was fir Scotland to vote No. the Brexit vote has been a game changer with high profile No voters switching to zero independence. It is cleR that the vast majority of Scots are opposed to the rabid right wing government we see at Westminster. Sturgeon stood on a ticket of a referendum in case of Brexit and has been pursuing all efforts to keep Scotland in the EU or with free access to eu markets and freedom of movement. The Scots economy is projected to lose 80000 jobs arising from Brexit and key sectors of universities and research are already suffering. Holyrood now has a pro independence majority from an election in May based on fresh offers to the Scots. Apparently that’s how democracy works. The lesson to brexiteers, and politicians along with their helpers in the press is: stop lying and misleading the voters. Elites playing with language that becomes deniable when held to account is why we are in this mess and someone needs to call the sick game to a halt. A politician has already died over this stupidity. Well done Nicola Sturgeon.