On 27th November, the European Court of Justice (ECJ) is to consider the Scottish request for clarification as to whether the UK can unilaterally stop the Brexit process and retain its EU membership. If the Court confirms that revocation of Article 50 is permissible, this could have major implications for the Brexit process.
The first paragraph of Article 50 of the Lisbon Treaty says that “A member state which decides to withdraw shall notify the European Council of its intent”. It is not clear whether, at any time before the 2-year period allowed for reaching agreement expires, a country can go back to the European Council and convey its wish to abandon negotiations and stay a member.
A cross-party group of 6 Scottish politicians (MPs, MEPs and MSPs) has received the backing of the Court of Session to seek a definitive ruling on this issue from the European Court of Justice. In spite of vigorous attempts by the UK government to block this move the request will come before the ECJ on 27 November 2018, possibly the same day that an EU Summit may be convened to approve the UK’s draft Withdrawal Agreement.
It is surprising how little media attention has been attached to this issue, given that an ECJ judgment that supports the possibility that the UK could automatically continue to be a EU member country by revoking its Article 50 invocation could have far-reaching consequences for the Brexit process. There was a full-scale article in the Guardian on 8 November but otherwise coverage of the process has been confined mainly to Scottish newspapers.
A positive ruling by the Court would have at least 2 major implications – first on the choices open to MPs when a draft Brexit deal is submitted to them for a “meaningful vote”; and secondly on the choice of questions to be put to voters should there be a People’s Vote.
The Prime Minister has been adamant that there are only two options open to the cabinet and to parliament – either to approve the draft agreement or to “crash out” of the EU without a deal. By painting a grim picture of the no-deal scenario, she is hoping to find a majority of MPs voting for her deal even if would be hugely costly and damaging for Britain. If staying in the EU would be an option open to Britain, then MPs would be bound insist on being able to vote on this third possible route.
The promoters of the proposal for a People’s Vote, which is now gathering momentum, are arguing that the ballot paper must include a “remain” option. This would provide voters with a means of expressing their aspirations, but it would only be of practical value if there was to be a real opportunity to retain true EU membership.
Theresa May must be heaving a huge sigh of relief that her technical team has at last been able to arrive at a draft withdrawal agreement with the European Commission. She has sold it to her Cabinet and is naturally intent on selling it to her Cabinet and pushing it through parliament as quickly as possible.
As long as the issue is awaiting a ruling from the ECJ it is difficult to see how MPs can vote meaningfully. Indeed, the main purpose of the Court of Session judges in forwarding the group’s request directly to the ECJ in September rather than to the Supreme Court in London was to secure early clarity on “the options open to MPs in the lead up to what is now an inevitable vote”. No doubt, though this will be hugely frustrating for the Prime Minister, there will be many MPs who will call for the postponement of any Commons vote on the draft agreement while Britain’s entitlement remains sub judice until the ECJ has issued its ruling.
Should the ECJ decide that unilateral revocation of the EU is possible, the knee-jerk reaction of the Government would be to appeal. An appeal, however, would take time, automatically imply a need for a further delay in the “meaningful vote”, and probably require seeking the approval by EU governments of a lengthening of the 2-year period for an agreement, now ending on 29th March 2019.
In the meantime, public support seems to be growing for a People’s Vote on the deal to such an extent that it is unlikely that “10 Downing Street” can continue to rule out a second referendum. The signs are that “the will of the people” has begun to shift, now that the stark realities of Brexit are beginning to hit them and more people are seeing that any Brexit deal will leave us worse off than we now are. Mrs May must be bound to be irked that, just a week ago, the Scottish Parliament formally endorsed the call for a People’s Vote!
Perhaps it is time for the leaders of Britain’s two big parties to take advantage of what seems to be an inevitable pause to ask themselves (given their current knowledge of the huge negative implications of any Brexit deal for the British economy, our standing in the world, and our enjoyment of continued peace in Europe) whether they should not, in all honesty, advise us – if the ECJ permits it – to stay in Europe and have a full say in its future. Only if May and Corbyn have the guts to come clean with voters about the reality of any Brexit deal or no deal can they secure themselves an honoured place in our history.
This is a moment for statesmanship and the long-term view of what is best for all of Britain – including Scotland!