Irish courts are to be asked to intervene in the UK’s legally complex Brexit process in a new appeal aimed at reaching the European court of justice in Luxembourg.
The application, which is seeking crowdfunding, will be on the issue of whether once Brexit is triggered, by giving formal notice to Brussels under article 50 of the treaty on European Union, it can be reversed.
It will also seek adjudication on the more surprising proposition that Brexit may already have been triggered and that a flawed procedure is under way.
At the supreme court hearing this week, virtually all parties argued their claims on the basis that once UK withdrawal begins it is irrevocable.
It was assumed the UK could not change its mind and choose to remain in the EU if it was dissatisfied with the outcome of negotiations before the two-year period elapsed.
Academic lawyers, however, have suggested that had the government adopted a different approach it would have had a greater chance of winning the supreme court case.
Senior judges in any EU country can refer disputed issues of EU law to the Luxembourg court for clarification. It is unlikely the case initiated by the prominent London QC Jolyon Maugham would reach Luxembourg and be decided before the UK gives formal notice to Brussels by the end of March.
One of the main arguments advanced by Euro-sceptics for Brexit is that it would enable the UK to escape the interfering jurisdiction of “foreign” judges.
Maugham, who has been in touch with supportive MPs and MEPs, estimates it needs to raise £70,000 through crowdfunding to finance the case.
He has had to go through the Irish courts because UK judges have made every effort to keep the article 50 appeal out of the hands of European judges.
The case in Dublin will be brought against the Irish state, the EU council and the European commission. It is likely to be brought in the name of MEPs.
Maugham’s claim will also question whether Brexit was triggered in October when Theresa May told the EU council the UK would be leaving. Since then the EU has appointed negotiators and has been behaving as though the UK is on a departure trajectory, Maugham says.
If it has been triggered then the commission is in breach of its treaty duties through wrongly refusing to commence negotiations with the UK, Maugham says. If it has not, the council and Irish state are in breach of their treaty duties in wrongly excluding the UK from council meetings.
The claimants will argue that they suffer a prospective deprivation of their rights associated with these breaches and that to resolve these disputes it will be necessary to refer these questions to the court of justice of the European Union.
Maugham said: “Put aside the legal niceties. What no one can dispute is that there are incredibly important questions to answer.
“Should parliament control the terms on which we Brexit? Could we have a referendum on the final deal – or is the consequence of triggering article 50 that we will leave the EU whatever the terms?
“By triggering article 50, does the UK also leave the EEA, or is there a separate decision to make about whether we remain in the European economic area and single market?
“Everyone – those who voted leave and remain; the people and government of Ireland – deserves to know the answer to these questions. People must plan their lives.
“Businesses need certainty to invest. The people of Ireland are entitled to a government that can work for the best possible future for Ireland. It’s right that we all have the maximum certainty that the law can give. And referring these questions to the court of justice of the European Union is the only way to deliver that certainty.”
Prof Stijn Smismans, director of the Centre for European Law and Governance at Cardiff University, said: “Regardless of whether the supreme court refers the case to the court of justice of the European Union, it may well come to the point that the EU institutions have to take a stance on accepting or not a revocation of withdrawal. One has to know whether that is possible, and it will be based on EU law.”
Smismans added: “From the drafting history of article 50 it is clear that the article was introduced with the aim to indicate clearly that a member state has a right to withdraw from the Union and to provide a procedure that leads preferably to a negotiated outcome. However, this exit-friendly intention is combined with a more exit-hostile procedure.
“The article is clearly written in such a way that while a negotiated solution is the preferred outcome, it is up to the remaining member states to pull the strings and decide which solution is best for the EU once the procedure has been triggered at EU level.
“There is no unilateral way back once the issue has been put on the European negotiation table. At the same time, it would be entirely against the spirit of the treaties and of article 50 if the EU could not stop the withdrawing process if the outgoing state has changed its mind and wants to remain.”
In the meantime, the 11 justices who heard this week’s appeal will reconvene at the supreme court next week to begin private and lengthy deliberations. When they left the courtroom on Thursday afternoon, they had not reached a final decision on their judgement.
Convention dictates that the discussion is led by the newest member of the court on the panel who is Lord Hodge. Initiating the post-courtroom discussions can be influential, enabling the speaker to shape the debate. Hodge will be followed by other justices in reverse order of seniority.
Their ultimate written judgement will be delivered before the end of January.
They will review written and oral evidence as well as precedent cases that will help them assess whether the government can use its prerogative powers to notify under article 50 or whether only a parliamentary act would be sufficient to remove the rights created by the 1972 European Communities Act.
Supreme court decisions often include dissenting judgements. A simple majority is required to decide the issue; they could split narrowly, with five justices against six. An odd number is always selected to hear a case, ensuring that there cannot be a draw.
Each justice can state their reasoning and line of legal authority for their conclusions in the final judgement. Given the political sensitivity of the case, there may be perceived pressure to produce a unanimous decision.