UKSC, Brexit and the Reversibility of Art 50 TEU

Tomorrow, Tuesday 23 January 2017, the UK Supreme Court will decide if Parliament must authorise Government to make the notification of withdrawal from the EU to the European Council. We will report more on that once the decision has been handed down.

In the meantime, another interesting challenge against Brexit is surfacing across the Irish Sea, in the High Court of Ireland, Dublin. Initiated by Jo Maugham QC, a London barrister funding the challenge with the help of crowdfunding, the action in Ireland seeks to establish whether the UK can unilaterally (i.e. without the consent of the other 27 member states) withdraw the Article 50 notification at some point in the next two years if it decides it doesn’t want to leave the European Union after all!

Why Ireland, one might ask. As far as the claimant’s have stated in public, leading up to commencement of proceedings, the goal is not to get a judgment in Ireland per se, since that would be meaningless in the UK and the Irish courts don’t have jurisdiction to determine the scope of either EU or UK law. Rather, the goal is to convince an Irish Court to make a preliminary reference under Article 267 TFEU, asking the CJEU if Article 50 TEU is revocable. Assuming the answer to that question is necessary for the national judge and assuming the Irish court will make the reference, it all seems pretty straightforward, right?

But this still doesn’t deal with why an Irish court would be concerned with UK constitutional issues in the first place. The ingenuity of Jo Maugham’s plan is that the cause of action is in fact one which can be dealt with in an Irish court — he is presumably claiming against the Irish state for failure to act (along with the EU institutions and the 26 other EU Member States) by refusing to negotiate with the UK about the terms of its Brexit divorce settlement: failing to negotiate on the basis that the referendum result in June 2016 was actually the notification under Article 50 TEU, thus the Brexit countdown started in June 2016, and not March 2017 as proposed by PM Theresa May.

Once the gateway to Irish courts has been identified, the next step is to convince that court to make a preliminary reference. So why would it? The answer to this question is rather simpler: Ireland has most to lose from Brexit of any EU Member State, so no judge would want to be the surgeon who refused the only procedure that stood a chance of saving the patient (in this context, Ireland). Optimistic, to say the least!

Then, of course, the next hurdle would be to convince the CJEU that the reference is one which is necessary to decide, and it is highly unlikely that it is, in practice. But would the Court agree to answer the question anyway? Probably yes, since it is obvious that Article 50 TEU is totally silent on the reversibility of the withdrawal notification, and also because the man who is credited with drafting Article 50 TEU, the Cross-Bench Scottish peer in the House of Lords, Lord Kerr of Kinlochard (ironic, no!), has said both that he thinks the notification is reversible and also that the Article was not intended for a situation like this (rather it was intended for countries that were punished for becoming dictatorships and as a result, chose to leave the EU).

So, while we eagerly await the UK Supreme Court’s decision on who can make the notification, possibly more exciting is what is happening in the land of leprechauns and Bono.

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