When it comes to Brexit, things are not going entirely Theresa May’s way. The UK supreme court ruled this week that there must be an act of parliament before May can invoke article 50 of the EU treaty, the notice that signals the death warrant for Britain’s EU membership. May’s government must now propose legislation for parliament to adopt and then try to steam ahead to trigger article 50 by its own end of March timetable.
But May’s court-ordained Brexit troubles may be just starting. On Friday, proceedings will begin in Dublin in a crowdfunded legal challenge.
The case, the brainchild of British barrister Jolyon Maugham, is being brought in Ireland but the applicants’ explicit objective is to have the case diverted immediately to Luxembourg. The litigants want the Irish courts to ask the advice of the European court of justice which sits in Luxembourg for its (binding) opinion regarding certain Brexit-related matters.
The European court’s advice is wanted on two main issues. First: can the UK change its mind once it gives article 50 notice and withdraw the notice? If so, that would give new hope to remainers who would like public opinion to shift on Brexit as the economic picture becomes clearer, of continuing their fight in the UK parliament, even after the government gives notice as planned.
Second: is article 50 notice on its own enough to ensure the UK quits the single market, or will that require further notice to be given under the European Economic Area Treaty? If extra notice is needed, that might possibly give the UK parliament a chance to block this step.
The litigants’ intentions are admirable. It is probably in everyone’s interests that we get answers to these two questions. Why should the Irish courts get involved, however, rather than the UK courts? To answer this, the applicants say they have a third question, which must be brought outside the UK. This is the allegation that Ireland, the defendant in the Maugham case, behaved illegally (along with the other non-UK member states of the EU) either by refusing to negotiate with the UK until Britain formally gives notice (the argument being that Britain’s giving informal notice was enough) or else (if that’s not correct) by excluding the UK from European council meetings held since the referendum.
The litigants face serious obstacles. They must establish “standing” in the case, a requirement designed to keep the courts clear of cranks: would-be litigants must establish a personal interest in the result of a case big enough to allow them to bring it. However, the Irish courts have proved generous in finding sufficient standing in previous EU-related cases and that might also happen here.
They must also establish what lawyers refer to as a “justiciable controversy”, which is tougher. Courts are not debating chambers so a case must have a point of law or fact that requires a court to decide it. Neither of the first two issues the applicants wish to raise seems really to have arisen yet: the UK has not yet tried to back out of giving article 50 notice and been refused; UK exit from the single market has not been blocked because of UK government refusal to give notice under the EEA treaty.
As for the third point, this looks utterly contrived. Success would require the belief that Britain has already given notice that it is quitting the EU by accident, or that European council meetings (excluding Britain) were held by accident. Moreover, a large question mark must hang over the appropriateness of proceedings that really appear to be to about getting the Irish courts to ask for advice rather than to succeed against the defendant.
There is a further obstacle: getting the Irish courts to refer the case to the European court. The high court judge may not want to, because that court is perfectly entitled to decide points of EU law itself. The applicants might have to appeal to the Irish supreme court. Under European law, the supreme court has less discretion – but even the supreme court doesn’t have to refer a question, if it feels the answer to it is clear. Let us suppose the litigants eventually get to Luxembourg. What if the court of justice refuses to answer the question? It has in the past declined to answer questions it considers contrived or hypothetical. There is more than a touch of that in this case.
Legally therefore the Dublin case can only be described as a long shot. On the other hand – as Gina Miller’s case shows – long shots, just occasionally, do succeed.
We should in any case be grateful to courageous litigants such as Miller and Maugham. Their cases may not be capable of stopping Brexit. But they may at least inspire a process of reflection – especially in parliament. And that process is surely Britain’s only hope of being one day rescued from those who prefer slamming doors to migrants to ensuring the economic wellbeing of the British people.
