IF they never ever do anything useful in their political lives, and no one is suggesting that will happen, the “Scottish Six” politicians have achieved something heroic and also struck a major blow on behalf of Scots law.
Their battle is not yet over – the Court of Justice of the European Union (ECJ) judges have to ratify their Advocate General’s opinion and then the whole matter comes back to where it started, the Court of Session in Edinburgh.
The direction of travel in the case is all one way – the ECJ will find against the UK Government and then the Scottish judges in the Court of Session, having been advised by the ECJ, will deliver the coup de grace.
The Six have won bar the shouting, and this David v Goliath fight will go down in the annals of jurisprudence as one of the most extraordinary legal battles in Scottish history.
Only one newspaper has consistently given this story the importance it deserved and many in the mainstream media ignored it and then poured scorn on the case. They are not doing so now.
It all began almost two years ago when it was clear that Theresa May’s Government were going to try and steamroller their version of Brexit through Parliament. In late 2016, Gina Miller and her colleagues went to the High Court and then the UK Supreme Court to successfully establish the point that Parliament, not the Government, is supreme.
During that case, Miller’s barrister told the Supreme Court that Article 50, once triggered, could not be unilaterally revoked. Top constitutional lawyer Jolyon Maugham QC disagreed and realised that with its separate legal system, Scotland was the place to raise the issue of whether Article 50 could be revoked by the UK unilaterally.
He knew, too, that Scottish politicians had to be involved as the petitioners, as they are known in such a Scottish case, had to have a place in the process.
Slowly but surely, Maugham began to talk to Alyn Smith MEP, and National columnist, and in turn he approached six other politicians who came on board – Christine Jardine of the Liberal Democrats pulled out early. That left the Six and Maugham.
The National can report that it was deliberate to get MPs, MSPs, and MEPs, of all parties involved. “That had to be the case,” said Joanna Cherry QC, “as we had to show the cross-party support we had.”
Using the Scottish courts was also helpful. Wightman recalled: “It was going to take place out of the media spotlight.”
It took months of preparation with QCs and solicitors to prepare the case which went to the Court of Session in February this year.
Smith said: “We were told that it was all hypothetical and would fail, but we decided that the question had to be put.”
Lord Doherty rejected their application to be allowed go to the Court of Justice of the European Union on the grounds that “the prospect of success falls very far short”. At that point in time, it looked as though the whole case might fail.
“We had pretty robust legal advice” said Cherry, “but there were procedural hiccups along the way.”
There were some collywobbles, too, not least because of the possible costs – Maugham organised a crowdfunding exercise but the £160,000 it raised would never cover the costs.
Cherry admitted: “The British Government have been so vindictive that we were all conscious we could lose our houses.”
It brought them close together, said Wightman: “I work cross-party all the time in Holyrood, so it was fine by me.”
Events then turned the Six’s way, however. The UK Government had to concede a “meaningful vote” to the Commons. Lord Doherty’s judgement was rendered out of date.
On appeal Lord Carloway, Scotland’s most senior judge, and two colleagues allowed the case to proceed to the ECJ.
These words should be in front of every MP for Lord Carloway said: “The issue of whether it is legally possible to revoke the notice of withdrawal is, as already stated, one of great importance … after all, if Parliament is to be regarded as sovereign, the Government’s position on the legality of revoking the notice may not be decisive.“
Lord Carloway added: “Only the Court of Justice of the European Union could answer definitively whether the UK’s notification to leave the EU could be unilaterally revoked. The answer will have the effect of clarifying the options open to MPs in the lead up to what is now an inevitable vote.”
The Six were jubilant, and then the UK Supreme Court backed the Scottish judges’ decision leading to yesterday’s historic opinion that the UK can withdraw its Article 50 notification and stay in the EU.
Alyn Smith said: “We just wanted to see this question answered and we have achieved that because we stuck to our guns. I feel we have put in a shift for Scotland.”
Cherry said: “We came under a lot of pressure at times, so I feel very very vindicated.”
Martin Hannan, Journalist