Amidst all the twists and turns of the Brexit drama, one question has never yet been answered – can the Article 50 notification letter sent to the EU by the UK Government in March 2017 be revoked and, if so, under what circumstances? Yesterday, an elegant and cogent legal Opinion from the Court of Justice of the EU argued that the letter could be revoked unilaterally provided that this was done in accordance with the Member State’s own constitutional requirements and was done in good faith.
For many of us, the triggering of Article 50 was a reckless move undertaken before any proper assessment had been made of the consequences of Brexit and oblivious to the real risks posed by the two year ticking clock. Moreover, the UK Government made no attempt to forge a cross-party negotiating mandate nor did it reach out to the nations and regions of the UK to establish a position that properly reflected their concerns.
As a result, we have the chaos we see today with time running out.
It was in anticipation of this chaos and of the possibility that the British people might change their mind as the reality of Brexit became clearer, that a group of Scottish MSPs, MPs and MEPs together with Jo Maugham QC, the director of the Good Law Project, sought an answer to this key question. We instructed a legal team and submitted a petition to the Court of Session in December 2017 seeking a reference to the Court of Justice of the EU, the only court with the authority to answer this question of EU law.
We were denied permission, appealed, secured permission, plead our case, were defeated, appealed, were successful and fought off two appeals by the UK Government who opposed us every step of the way. Remarkably, in the Luxembourg Court last week, Lord Keen for the UK Government was still arguing that the question was hypothetical, irrelevant and inadmissible.
The Opinion of Advocate General Campos Sanchez-Bordona vindicates the argument we made to the Court that just as a Member State can notify the EU of its intention to leave, so can it notify of its intention not to do so. The Opinion will influence the Court’s final ruling expected within the next two weeks which will be sent to the Court of Session for its final ruling.
Public opinion is shifting on whether the UK should leave the EU. As the reality of the consequences become clearer with every option presented making us poorer than we would have been, the ability to revoke Article 50 may become the lifeboat upon which we escape the sinking ship. It is only right that the British people have their final say on the deal and that remaining a member of the EU is an option.
Hopefully, when we receive the final ruling of the Court, it will be clear that this is indeed a realistic option and that the will of the people, if it has changed, can be effected by revoking Theresa May’s famous letter.
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