Brexit: Irish High Court action to clarify article 50

A group of British and Irish lawyers are planning an action in the High Court in Dublin to establish if Brexit can be halted or reversed following the triggering of article 50.

British prime minister Theresa May is set to trigger article 50 of the Lisbon Treaty, the formal process for confirming the UK is to leave the European Union, by the end of March 2017.

The lawyers hope the court in Dublin will ask the European Court of Justice to determine if Britain can unilaterally revoke its invocation of article 50 and if leaving the EU means that Britain must automatically leave the European Economic Area.

The initiative is led by Jolyon Maugham QC, a leading London barrister, Dublin solicitor Simon McGarr and barrister Joseph Dalby SC. They will allege that the Irish State, the European Commission and the European Council have breached EU law in relation to article 50.

They will say that if the article has not yet been triggered, Ireland and other EU member states breached EU law by excluding Britain from some meetings of EU leaders since the Brexit referendum in June.

They will also suggest that the article may in fact have been triggered already, when Ms May told the European Council in October that Britain will leave the EU. In that case, the EU could have breached article 50 by refusing to start negotiations about Britain’s withdrawal.

Mr Maugham told The Irish Times he expects a crowdfunding effort to raise £70,000 to cover the cost of taking the action and that he hopes a British MEP will agree to be the plaintiff.

Economic area

He argued that it made sense to take the action, which he expects to begin in the next two weeks, in an Irish court.

“One is that it has a legal system that is very similar to our own, so for a UK-based litigant, you understand that. Another is that it is a country that is profoundly affected by Brexit, perhaps more than any other. And in particular, this issue around the European Economic Area (EEA). If we were to leave the EU but to remain in the EEA, then almost all of the problems that Brexit causes the Irish State and the Irish people disappear,” he said.

The EEA includes all EU member states, along with Norway, Iceland and Liechtenstein, and offers access to the European single market but requires free movement of people, goods and capital.

Mr Maugham said many people in Britain on both sides of the referendum debate were concerned about the impact of Brexit on Ireland.

He said that, if his action in the Irish courts led to the European Court of Justice ruling on whether article 50 was irrevocable, it would be in the interest of people in both Britain and Ireland.

"Then we know where we are. Parliament knows where it is. Your Government knows where it is. People over here who are calling for a second referendum or indeed a third referendum, know where they are and we can all get on with the business of trying to deliver a Brexit that works best for the Republic and works best for the United Kingdom.

“It’s in everyone’s interest that this question should be clarified.”