Ireland’s courts will host an ambitious crowdfunded attempt to refer an appeal to the EU’s highest tribunal about whether the process of Brexit is reversible. A letter before action is being sent to the Irish government on Friday, and it is intended that the application will go before judges in Dublin in the spring.
Meanwhile, the high court in London will hear a claim brought by two sets of claimants arguing that the UK should remain in the European Economic Area after Brexit. The challenge is likely to be heard during the week after next.
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The main claimant before the Dublin courts will be Jolyon Maugham QC, a London tax specialist who is coordinating efforts to argue that article 50 of the Lisbon treaty, which formally begins a country’s exit from the EU, can be reversed if a country changes its mind and decides not to leave.
Maugham, who has rights of audience in Dublin, said: “The UK must retain sovereignty over the shape of its future relationship with the EU. If we change our minds, we must be able to withdraw the notice without needing the consent of the other 27 member states. I want to establish clarity for British voters and deliver sovereignty to the British parliament over the question of its future relationship with its biggest trading partner.”
He said elected politicians may join him in the case as plaintiffs. In the space of a few days his crowdfunding campaign raised £70,000, largely in donations of £50 or less.
British judges and claimants have so far been reluctant to refer questions about Brexit to EU judges in Luxembourg. Maugham’s challenge, nominally against the Irish government, will try to persuade Irish judges to refer the question of article 50’s revocability to the European Court of Justice (ECJ).
If the ECJ were to rule that article 50 is revocable, it would enable the UK to reject the outcome of Brexit negotiations should they not prove acceptable to parliament or voters, and remain in the EU.
The high court case in London about staying in the European Economic Area was initiated by Peter Wilding and Adrian Yalland. Wilding runs the pro-single market organisation
British Influence. A group of four anonymous claimants – a mix of overseas, EU, EEA and UK nationals – have joined the judicial review challenge, claiming that separate parliamentary approval is needed to quit the EEA.
Article 127 of the EEA agreement requires contracting parties, which include the UK, to give at least 12 months’ notice before leaving, the claimants point out. They say that implies a separate departure process from the one set out in article 50 of the EU treaty that
has been disputed in the supreme court.