The first of the most recent developments may not be wholly unexpected. The Advocate General to the European Court of Justice issued his non-binding decision this week on withdrawal of the Article 50 letter sent on 29 March 2017. This case arrived in Luxemburg as a referral from the Scottish Courts and arising out of a petition brought by a cross party group of Scottish MPs, MSPs, MEPs and an English QC. There were no Conservative petitioners. It was fiercely opposed by the UK Government, who said the petition was both inadmissible and, more importantly, hypothetical since there was going to be no withdrawal of the Article 50 letter, ever.
The Article 50 legal anoraks, who were mainly in favour of the argument that it could be withdrawn unilaterally by the UK Government acting in good faith, were vindicated. It is probably the case that there would need to be legislation in Westminster to give effect to that decision before a withdrawal letter could be sent to Mr Tusk. However, drafting such a Bill may not be too hard or too time consuming, but who knows what the response would be in Westminster from the Brexiteer groups who would not be happy. We will know on Monday 10 December whether the full Court agree with the Advocate General's decision, and their decision is binding.
We are also now expecting a decision on 13 December from the Supreme Court on the legislative competence of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. This was the Scottish equivalent to the UK Withdrawal Act. It sought to implement a view that more powers should transfer directly to Scotland, because Scotland held them already subject to the current exercise of those powers by the EU. The decision has huge implications for the exercise of treaty and international powers by the Scottish Government and Parliament. The legislation would also sit very awkwardly with the regime set up under the UK Withdrawal Bill. The president of the court, Lady Hale, made a comment at the end of the hearing along the lines of how difficult this case was going to be to decide, which was probably one of the constitutional understatements of the year. A prudent commentator is not going to put their head above the parapet and predict the result but I will certainly will be standing by the computer on Thursday 13th prepared to be surprised whatever it says.
The final legal event for this week, and perhaps the most bemusing, was the furore around the Attorney General's legal advice on the Irish Border. It is indeed a well understood convention that Law Officer's advice in England and Scotland is not normally referred to and only in very exceptional circumstances is the content made available. In Scotland this had only happened a couple of times since Devolution in 1998, and only the content not the actual advice has been referred to or produced.
The initial approach by the UK Government was therefore perfectly understandable, and their refusal to produce the advice to protect a well established convention seems appropriate. However conventions are not absolute and any government can choose to waive their right in the same way any ordinary solicitor/client relationship can be waived. It is a very important convention and not to be handed away lightly. However it is difficult to see what could ever be "an exceptional case" in which to waive that right, if not advice on the effect of the Northern Ireland backstop provisions. This precedent is probably not going to lead to a flood of successful application to see legal advice from Law Officers. Advice on the effect of the backstop provisions appears to be the most difficult and contentious issue preventing the terms of the Withdrawal Agreement being approved. It is not surprising that the UK Government lost the vote in the Commons in the current climate and were forced to produce the actual advice. It remains to be seen what the long term implications of that unusual process will be for the UK Government.
In any event, the last weeks before Christmas are promising to produce lots of reading and unexpected events for those interested in politics and constitutional law. By Christmas Eve, Santa may find we have finished up his traditional sherry with all the Brexit excitement and there will be none left for him.
Ho Ho Ho.