THE Advocate-General’s opinion in the Scottish case on Brexit cancellation at the European Court of Justice may be on shaky ground, so we should be prepared for a rejection by the court of his view that the UK does not need Europe’s agreement to take back its notice to leave.

He derives his main legal support from the Vienna Convention, but the sections of that treaty on which he relies extend the right of unilateral revocation only to cases where one party asserts a right to revoke because they have been disadvantaged by something for which they are not to blame. In the absence of such an event, there is no unilateral right to revoke. It is not built-in, so to speak.

The Advocate-General claims that it is built in to Brexit, but since the question of disadvantage does not arise, his Vienna Convention support does not exist. The rest of his argument amounts to little more than wishful thinking, dressed up in legalese.

We should not be surprised if this turns out to be one of the minority of cases where the court does not adopt the Advocate-General’s opinion. Let’s not count our chickens.

Alan Crocket

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