Along with the other Plaintiffs, Jonathan Bartley, Keith Taylor and Steven Agnew, I have taken stock of progress made on the Dublin case, its prospects going forward and changes in the wider political setting. With regret, we have agreed between us and with Ireland that the litigation should be discontinued. I set out my own reasons for consenting to that course below.
Last week, the parties concluded the exchange of pleadings – the written cases setting out the points each side intends to take. That made it an appropriate moment to reflect with the Counsel team on the way forward.
A number of matters have become apparent. In particular, it is clear that Ireland does not want a reference to the Court of Justice in Luxembourg of the questions in the proceedings. This stance surprised me. I believed that the Ireland would want to act mindful of the law rather than in the dark. But, surprising or not, it has consequences.
The first is timing.
If, as is likely, Ireland takes every point available to it, it is unlikely we would have a full hearing in the High Court until the autumn. The advice we have received only this week from the senior member of our Counsel team is that we would be very unlikely to obtain a reference to the Court of Justice from the High Court. We would then need to appeal to the Supreme Court of Ireland. The Supreme Court would be more likely to make a reference – but our prospects would still be speculative.
If you assume that a reference were to be made at that stage, the UK Advocate General has indicated it would take four to eight months to hear that reference. So we might not have a decision on the questions referred much in advance of the date (October 2018) by which both David Davis and Michel Barnier have said negotiations would need to be concluded.
The second is costs.
Funding the litigation going forward will be expensive. Our costs will not be insignificant. And provision must also be made for the other side’s costs in case our claim fails. The advice we had at the outset was that we should be able to get an order protecting us from the other sides’ costs. However, the advice we now have is more pessimistic about that prospect. This means that we would have to raise money to pay our own legal team – and to pay the Counsel engaged by Ireland. It is possible that such a sum of money – which would be in the hundreds of thousands of pounds – might be raised. But, even assuming it can, it leaves the question whether, given what we now understand about timing and prospects, raising and spending that money is wise. I do not want to seek to raise such a substantial sum of money unless I can be satisfied that to spend it for the stated object is prudent. And I regret that I am not.
What does our decision to discontinue the litigation mean?
It does not mean Brexit is inevitable.
Each of the Council, Commission and European Parliament has said the United Kingdom could withdraw the Article 50 notice with agreement. There is no doubt this is so. Discontinuing leaves open the possibility that the United Kingdom could withdraw the Article 50 notice unilaterally. This may be possible – legal opinions on the question differ – but discontinuing means we cannot know by this route whether it can.
I have sought to be a careful steward of the crowdfunded money. Of the £70,000 raised, £4,000 went in fees. Of the remainder, a significant portion will have been expended on legal costs so far. But there will be a sum remaining unspent. The solicitors have not yet been able to quantify that sum. When that sum is known to me, I will ensure it goes either to other Brexit related litigation with sympathetic aims – or if there is no other such litigation to a charity.
I think it was right to make the bold decision to seek the answers we need. We knew there was no guarantee of success. But we were right to try. It’s now up to all of us to take our love of our country and our optimism that there is a positive way forward and channel it to protect, Brexit or no Brexit, the values we care about.
Jolyon Maugham QC