Big win for Scotland's Super Six as ECJ says Article 50 can be withdrawn

Though it remains to be ratified by 27 judges, the Court of Justice of the European Union (ECJ) stated yesterday that the UK has the power to unilaterally revive Article 50.

READ MORE: MSPs set to reject Theresa May’s draft Brexit agreement

The SNP’s Alyn Smith MEP and Joanna Cherry QC MP, Labour’s David Martin MEP and Catherine Stihler MEP, and Scottish Greens MSPs Andy Wightman and Ross Greer plus Jolyon Maugham QC, director of the Good Law project, brought the case to the Court of Session and it has been strongly opposed at all stages by the UK Government.

It was thus a humiliating defeat for Prime Minister Theresa May’s Government – and her legal advisers such as Advocate General Lord Keen – after they fought and lost the case in Scotland’s Court of Session, the UK Supreme Court and the ECJ.

They had argued all along that revocation was “hypothetical” and therefore “inadmissible” but yesterday the ECJ decided it was not.

Advocate General Manuel Campos Sanchez-Bordona’s opinion was that if a country decided to leave the EU, it should also have the power to change its mind during the two-year exit process specified in Article 50 of the EU treaty – the ECJ judges very rarely overturn such opinions.

The opinion came as the House of Commons began five days of debates on May’s proposed Brexit deal, with a vote due to be held next Tuesday.

A statement from the ECJ said: “In answer to the question from the Scottish court, the Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the Withdrawal Agreement is formally concluded, provided that the revocation has been decided upon in accordance with the member state’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.”

The victory for the “Scottish Six” was also a slap in the face for the European Union, which had contested the case and argued that a country needed the approval of all EU states to stop the Article 50 process.

Alyn Smith said: “This is a huge win for us, and a huge step forward from the highest court in the business, and confirms what we have been hoping for: that the UK can indeed change its mind on Brexit and revoke Article 50, unilaterally.”

“The Advocate General opinion is not the final judgment, but the practice of the ECJ is that the judges tend to follow the opinion so this is a major landmark.

“We now have a roadmap out of the Brexit shambles, a bright light has switched on above an ‘EXIT’ sign and the false choice being offered to MPs at Westminster – that it is Mrs May’s disastrous deal or chaos – is shown for what it is, an abuse of Parliament.

“There are other options, and we can stop the clock.”

Catherine Stihler MEP said: “If judges accept his opinion, the UK will have the option of halting the process, and will be able to offer the chance to keep the best deal we have as a member of the EU through a people’s vote – rather than choosing between Theresa May’s bad deal or a catastrophic no-deal scenario.”

Joanna Cherry QC told The National: “When we got to the ECJ they didn’t actually have a substantive position. They argued that the case was inadmissible and the court pressed Richard Keen on a number of occasions and he refused to say what his position was on Article 50 being revoked.”

Jolyon Maugham said: “It’s a very important moment, it makes the path to remain much easier.

“We know that if the Advocate General’s opinion is followed we will know that we can keep all of the options and the special privileges that we enjoy as a member of the EU.

“It puts the decision about whether to remain into the hands of MPs, which is where it should be.”

Maugham also tweeted that he was “hugely grateful for @theSNP’s quiet support throughout what has been a long and difficult campaign to ensure MPs and devolved legislatures have *all* options on the table.”

The Scottish Greens said that while the Advocate General opinion is not binding, it is considered very influential.

Andy Wightman said: “This is a very welcome opinion that vindicates the argument we made to the Court of Justice on November 27.

“We await the court’s ruling in due course followed by the final decision of the Court of Session.

“It is now highly likely that, if the people of the UK were to change their minds and decide to remain in the EU, there is now a route to doing so.

“This would involve the extension of the Article 50 notification period and a second referendum.”

Wightman added: “This is the only option that ends the current chaos and provides a considered and sincere means by which the citizens of the UK can have the final say in this process.”

John Edward of the Scotland for a People’s Vote campaign said: “The terms of the Brexit debate have fundamentally shifted.

“The option of staying in the European Union – which is what the vast majority of people in Scotland want – is still open to us. By remaining in Europe, the far better deal that have had over nearly half a century of membership would remain intact.

“A people’s vote is a democratic opportunity for Scotland’s wish to remain in the EU to be respected, and polls show that a majority of people south of the border now want to stay in Europe too.”