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.
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.
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.Follow @jolyonmaugham