Why is there a Brexit court case in Ireland?

The Four Courts in Dublin, Ireland’s legal hub, was designed by two Englishmen. But the last formal link between the courts of the Republic of Ireland and those of the United Kingdom was broken in 1935. So it may seem strange that a case concerning Brexit is due to land in the Four Courts by the end of next week.

Why are the Irish courts now dealing with Brexit?

Anti-Brexit campaigners want to know whether the process can be halted in future

The starting point is that nobody knows, with certainty, whether a notification under Article 50 of the Treaty on European Union can be unilaterally withdrawn once given. In other words, can the UK change its mind about leaving the EU before Brexit negotiations are complete?

Article 50 simply doesn’t say, so it’s arguable either way. “Many people have confident opinions but nobody knows for certain”, as law and policy commentator David Allen Green says (£).

Knowing whether we can row back on Article 50 is particularly important to people who oppose Brexit. Pro-EU campaigners want the option to pull out and resume our membership on existing terms if the political situation changes.

If there’s no turning back from an EU exit once Article 50 is triggered, there would be no point in parliament or the electorate voting on the terms of a new agreement versus continued membership. 

The choice would instead be to take the exit deal on offer, or reject it and exit with no divorce deal at all. (Some supporters of Brexit think that the latter wouldn’t necessarily be a huge problem.)

The Irish case is a route to an EU court ruling on what Article 50 allows

As the meaning of Article 50 is a matter of EU law, only the EU court is qualified to decide whether or not a notification can be taken back. The question would reach the judges in Luxembourg if referred there by the courts of an EU member country.

Some people thought that the UK Supreme Court would ask the question in order to resolve the case it decided on whether parliament has to approve an Article 50 notification. That didn’t happen.

But a reference to the EU court doesn’t have to come out of the UK legal system. Jolyon Maugham QC, a barrister and confessed “Remoaner”, has crowdfunded £70,000 to take the question to Luxembourg via Dublin instead.

It’s not as simple as asking the Irish High Court to pass the question on to the EU judges just because an answer would be helpful. There first has to be an Irish legal issue for the Article 50 question to piggyback onto, if you like.

The way that’s being achieved is for UK politicians, as yet unnamed, to sue the Irish government.

Mr Maugham and those politicians will claim that either Article 50 has already been triggered—in which case the EU should be negotiating already—or it hasn’t, in which case the UK can’t be excluded from EU meetings. Ireland, as an EU member, is involved either way. (Various EU bodies are also being sued.)

And, the claimants say, “it will be necessary to have the ruling of the Court of Justice of the European Union” on what Article 50 means in order to decide these issues.

In theory, the EU court ruling is only a sideshow. But in reality, it’s the whole point of the exercise.

There are potential hurdles in the way of this case

It remains to be seen whether the Irish courts will accept the case in the first place. Some Irish legal experts have their doubts.

The claimants must convince the High Court that they've brought it more than a hypothetical legal problem to solve, as Professor Gavin Barrett of University College Dublin points out.

Even then, it could still decline to send the relevant questions to Luxembourg. Professor Eoin O’Dell of Trinity College Dublin says that “it is not enough that the plaintiffs ask for the reference—it’s actually the court’s decision whether to make it”.

There could even be an issue with the crowdfunding of the case, due to medieval laws against people supporting legal cases in which they have no direct stake. This “very big banana skin”, as Professor O’Dell puts it, is the reason why Mr Maugham’s lawyers are at pains to emphasise that these are “public interest proceedings” (and therefore allowable).

Not just about Article 50

There is a second purpose behind the case: to find out whether leaving the EU automatically means leaving the single market as well. As there’s another case being taken on that issue, we’ll cover it in a separate article.