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Can we halt Brexit? A review of a Dublin High Court case to establish whether or not Article 50 can be revoked

Court proceedings issued in the Dublin High Court over recent weeks have named several Green Party leaders in Britain and Northern Ireland as litigants in a case that will determine if Britain can withdraw its Article 50 notification, without the consent of the 27 other Member States.

Johnathan Bartley (the co-leader of the Green Party of England and Wales), Steven Adnew MLA (the leader of the Northern Irish Green Party) Keith Taylor (Green Party MEP for the South East of England) and Jolyon Maugham QC, (a leading UK Barrister) are the named plaintiffs seeking a referral to the European Court of Justice of the European Union. They are in pursuit of a decision on whether Article 50, once triggered, can be revoked by the UK government.

Why has the case been filed in Ireland?    

Legally, the dispute could take place in any of the 27 EU Member States. However, Ireland has a vested interest in how Brexit affects its relationship with Northern Ireland. In practical terms, Ireland and the UK both use the same operating languages and have very similar legal systems.

Furthermore, the litigants are suing Ireland, along with other arms of the EU, for acting in breach of the law towards Britain since the vote to leave the EU last June. They argue that Britain itself cannot sue for its alleged mistreatment by the other Member States - therefore Ireland was the “natural choice” for the reasons outlined above.

How is the case funded?

The case is being financed by a crowd-funding exercise which reached its target of £70,000 within two days, largely through small donations. There were almost 1300 donations of £25 or less and over 1700 donations of £50 or less. The litigants have also not discounted the option of raising further monies to fund the Irish litigation, although they have highlighted that the lawyers involved are acting at below market rates.

What is the UK Government’s position on revoking Article 50?

Their stance taken on this issue is somewhat ambiguous. The UK Government states that it does not intend to withdraw Article 50 and David Davis, Secretary of State for Exiting the European Union, claimed to not even know whether it could if it wanted to.

Perhaps, wisely, the Government is merely choosing to wait until they have all of the possible facts in front of them before making their position on revocability public. The very fact alone that they have not said that Article 50 cannot be unilaterally withdrawn is telling in itself.

Case Progress
This matter is one of European law, and therefore can only be answered by the Court of Justice. The litigants are targeting a hearing in early April on whether the Dublin High Court should make a reference to the Court of Justice. Once referred, the Court of Justice could give its decision within a few months. These timescales will, of course, be dependent on the attitude of the courts in question.

This case is probably more for interest than anything else. Regardless of its outcome, it’s unlikely to have any material impact on the Brexit process, which goes up another gear with tonight’s vote in Parliament … but despite all the uncertainty that is surrounding Brexit, one thing is clear – namely that nothing is certain, so don’t be surprised if the Dublin courts look to get in the Prime Minister’s way over the next few months.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.