The following press release was sent to a small number of journalists this afternoon.
PRESS RELEASE. EMBARGOED UNTIL 10PM GMT on 9 DECEMBER 2016
Brexit litigation to commence in the Irish Courts.
This evening at 10pm, leading barrister and campaigner on tax and politics Jolyon Maugham QC will launch a bid to crowdfund £70,000 in grassroots donations to cover the costs of an action in the Irish High Court which will aim to establish whether an Article 50 notification sent by the UK would be revocable at a future date.
The Defendants will be the Irish State, the Council and the Commission and the anticipated plaintiffs will be UK MEPs. The claim alleges that Article 50 may, in fact, already have been triggered. If it has been triggered then the Commission is in breach of its Treaty duties through wrongly refusing to commence negotiations with the UK. But if it has not, the Council and Irish State are in breach of their Treaty duties in wrongly excluding the United Kingdom from Council meetings.
The plaintiffs will say 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 certain questions to the Court of Justice of the European Union.
Jolyon Maugham QC 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.”
These steps have been taken following advice from the leading Dublin firm, McGarr Solicitors, and Senior Counsel – equivalent to UK QCs – at the Irish Bar.
You can read here a copy of a Statement of Claim – the operative part of the formal document that will commence the claim – settled by Joseph Dalby SC.
You can read the Crowd Justice bid – which outlines in greater detail the case for taking these steps – here.
For Background Detail you may wish to read this piece on the revocability of Article 50 and this on our future relationship with the EEA.
Waiting for Godot 
As soon as there’s a crowdfunding area please let us know!
As soon as there’s a crowdfunding area please let us know!
Thank you. There’s a link in the blog post!
Ok thanks. It says, “You can read the Crowd Justice bid here”, whereas I was looking for something talking about funding. You might want to amend that line to make it clear.
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thanks. it’s kind of a historic document. I’ve removed, i.e., contact details but I don’t want to rewrite the whole thing.
Hello, for me as a grasssroots person who would like to contribute, it is not at all clear how to do that. Could you make that clearer, i.e., explicit, somewhere? Thank you.
The link to contribute is here https://www.crowdjustice.org/case/brexit-for-the-100/. Thank you for asking.
Thank you!
I would like to say how impressed I am by the actions you are taking and hope that people will one day be able to look back and recognise it was instrumental in stopping our seemingly inevitable drift towards a hugely damaging hard Brexit.
I have already contributed to the crowd justice site and am spreading the word about what you are doing and why it is so important as far as possible.
Very best of luck. I hope you are prepared for the vitriol you are certain to receive from elements of our society, not least the tabloid press.
If there is anything, as a non-lawyer, that I may be able to do to help please let me know.
I think that the risks that this case brings make it undesirable. So although I had helped to fund the Supreme Court and High Court cases I will not fund this one.
GREATER RISK THAT COURT FINDS NOTIFICATION IRREVOCABLE
The first risk is that the Court is less likely to find an Article 50 notification to be revocable now when it is all so abstract than if the case was brought at the end of the process (UK agrees exit terms with EU, holds second referendum November 2018, decides to Remain, withdraws notification, EU and member states pleased or at least go along with that, ECJ case brought by Nigel Farage, ECJ very clearly presented with question whether to expel UK from EU on the basis of the disputed interpretation of a procedural technicality).
We would of course benefit from knowing that the notification was irrevocable before handing in the notification – but not much. Even if we could now obtain a second referendum on the Government’s plan it would be of little value. The plan would correctly set out the most ambitious negotiating position: have cake and eat it. The result of a referendum held before terms had been agreed would therefore be much the same as in June. (Parliament does not have the political authority to just set aside the referendum.)
RISK: NOTIFICATION IS IRREVOCABLE AND HAS ALREADY BEEN MADE
The second risk is that not only might the court find that the Article 50 notification is irrevocable but also that the notification has already been made (the case argues the second point). In which case of course the Remain cause is almost certainly lost.
I am no lawyer, but it seems to me hard to believe the case, if I have understood it correctly, that either the referendum (though politically binding, advisory – effectively worthless – in law) or Theresa May’s party conference speech (we do not have government by decree) amount to the notification.
But still, the case being argued is that the notification has been made and it might win on that point and lose on revocability.
EUROPEAN ECONOMIC AREA IS A RED HERRING
Lobby group “British Influence” are pushing the claim that we are in the EEA in our own right on the basis that that means that the wicked EU cannot throw us out of the single market. But that misses the point. The EU would be happy for us to stay in the single market provided that we accept the four freedoms.
EEA countries also accept the four freedoms, with small reductions in the freedom of movement (there is an emergency brake for example, which has never been used and may well be unworkable). It is hard to see Theresa May and the Hard Brexit lobby signing up for it.
And if you want a soft Brexit why leave the EU?
So while of course we must get the process of leaving the EEA legally right, the political value of continuing EEA membership is based on a misunderstanding about the terms on which EU/ EEA would offer membership, and who it is that does not like those terms.
I am very pleased and thankful that you have brought up the issue of the revocability of notice under Art 50, Irish-British relations and acquired rights. I have been going on about these in the Guardian forums for some time without eliciting much interest. I could not understand how MPs were expected to vote on Art 50 notice without knowing whether Art 50 notice was revocable. I also find the Labour Party’s position baffling. I will be making a modest contribution to your crowdfunding.
I too was a contributor to both phases of the People’s Challenge in the London courts, and I am very likely to contribute to this case as well. But I think it will be easier to claim that this case is politically motivated. I also think that there might be scope for accusations of jumping onto a bandwagon.
But, above all, I think that the referendum was so poorly conducted that its result needs to be susceptible to further scrutiny at every stage in its progress.
Support your efforts but query your choice of Dublin solicitors McGarr Solicitors? http://www.irishtimes.com/news/ireland/irish-news/singer-s-solicitor-found-guilty-of-misconduct-1.1468759 .