High Court to hear British Brexit escape route case

The High Court is to be asked to seek a ruling from the European Court of Justice on whether an article 50 application to leave the EU, once invoked by the London government, can be reversed.

Jolyon Maugham QC, who has announced he is taking such a case, has said it would be politically impossible for the London courts to refer such a question to the EU’s highest court, and so he and others have decided to take a case in Dublin.

A so-called letter before action, a precursor step to issuing proceedings, is to be delivered on Friday to the proposed defendant in the case, the Irish Government.

Mr Maugham has raised more than £70,000 (€80,000) by way of crowd funding from almost 2,000 donors to support the case where he will argue that the Irish State has been party to improper actions on the part of it and the other EU member states, in excluding the UK from a number of European Council meetings and other functions.

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“Our clients have instructed us to initiate public interest proceedings before the Irish courts against Ireland and the Attorney General in order to seek clarificatory and declaratory reliefs with an end to achieving legal certainty on a number of serious questions that our clients say affect all European citizens, the proper functioning of the EU institutions and formal operation of the European treaties.” The letter before action is to inform Attorney General Máire Whelan.

The Government is being asked to consent to a protective costs order, which would shield the plaintiffs from being saddled with the legal costs of the State should they lose.

Britain leaving

As a result of the case, Mr Maugham is also hoping that the courts here will refer to the European Court of Justice the question of whether Britain leaving the EU automatically means it must leave the European Economic Area.

A ruling that article 50 can be revoked would, he said, "give the UK power to reject the outcome of article 50 negotiations and remain in the EU should the Brexit negotiations being led by Brexit secretary David Davis MP yield a deal that was not acceptable to the UK parliament or British voters".

Without this ruling, Britain would be forced to take whatever deal Mr Davis emerged with, or leave with no deal on a range of crucial economic and social issues, including access for British firms to the single market, and the rights of British citizens living, travelling or wishing to retire in Europe, he said.

Brexit process

The proceedings are to be issued on January 27th, and will target a hearing date for an application for a reference to the European Court of Justice as soon as possible after March, when British prime minister Theresa May is expected to trigger the Brexit process.

Mr Maugham said he holds unconditional written confirmations from several elected UK politicians that they will act as plaintiffs in the case. Their names will be made available later this month and, he said, there are continuing discussions with other elected representatives of whether they will issue parallel proceedings.

The London government is currently awaiting a ruling from the British supreme court on a decision that it must consult parliament before triggering article 50.