News has broken this evening that Jolyon Maugham QC, A leading British lawyer and a campaigner for Britain to remain in the EU, has this evening launched a crowdfunding appeal in order to mount a challenge over the legal aspects of Brexit at the Irish High Court.
Mr Maugham is enlisting the help of Dublin based solicitors, McGarr Solicitors,and wants the issue of whether or not Article 50 can be reversed once it is triggered to be adjudicated upon by the European Court of Justice. Mr Maugham is banking that Irish High Court judges would find it necessary to refer the legal questions raised by the case to European judges in Luxembourg.
Any new challenge will cause fury in the leave camp as they will see this as yet another potential delay in the triggering of Article 50 which is scheduled to be active before the end of March 2017. Currently the British Government is in the midst of an appeal against the recent High Court decision on allowing a vote by the British Parliament with regards to the activation of Article 50. It would also cause severe anger if an Irish court was to become involved in what essentially is seen by the leave campaign as a British matter. And if this case should be ultimately referred to the European Court of Justice, the Leave campaign would be even more furious.
Mr Maugham’s legal team has prepared a 26-page draft legal document, called a Statement of Claim and once the funding is place, will be lodged with the Irish High Court. His team is arguing that the EU institutions and Ireland in particular, are in breach of the EU Treaties by excluding the UK from the last few EU summit meetings, such as the Bratislava meeting in September, and the European Council meeting in Brussels next Thursday. His team is also arguing that actually, Article 50 has already been triggered by the British Government due to its many declarations of intent to leave the EU and as a result, the EU is breaking its own law by not starting negotiations already.
Mr Maugham released a statement this evening saying that “The case is being brought in Ireland because the Irish Government has, we say, colluded in a breach of the EU Treaties by wrongly excluding the UK from meetings of the EU Council. We can only make that claim in the courts of Ireland. Ireland also has a major stake in whether the UK remains in the EU or EEA. We came into the Single Market together, if we leave it alone there will be enormous economic and social disruption to both Ireland and Northern Ireland.”
His case is based around two major questions;
Can Article 50 be reversed, once it is triggered and does the triggering of Article 50 mean that Britain also automatically leave the European Economic Area (EEA)?
Once it is raised in Ireland initially, Mr Maugham is hoping that due to the nature of these questions, his case will eventually be referred to the European Court of Justice. Mr Maugham is confident that his crowdfunding appeal will reach its target before end of the year and he hopes to start proceedings at the end of December.
The whole attempt will no doubt be an embarrassing situation for the Irish Government who are currently in the process of attempting to deal with both sides and maintain good relations. The last thing the Irish Government wants to be involved with is such a matter as this but it may be impossible for them to avoid it if Mr Maugham is successful in his efforts to raise the finance for the challenge.
Fast in fast out
What is clear is that the Remain campaign is scrutinising every legal loophole in an effort to keep Britain in the EU or at least in the European Economic Area (EEA). A target of €83,000 (£70,000stg) is required in order to start proceedings and it will be interesting to see if Mr Maugham will be able to reach his financial goal during the most difficult fundraising time of the year.
While the idea is indeed cleaver, I have to admit, it will be difficult for the Irish Government to be possibly involved in what really is a larger battle between a member state and its Union. My hope is that the proceedings will indeed be quick and if that is so, the challenge will move to the European Court of Justice in a short space of time. I firmly believe that the majority of the Irish public are behind Britain staying in the EU but we would prefer not be more involved than we already are. Maybe the time is right for Ireland to stand up and be the honest broker in all this? We seem to have vested interests on both sides and could it be possible that our Government could pay a neutral role? Probably not, but if that is not the case, what role should Ireland play?
Whatever role Ireland has, its looking more and more likely that Brexit will continue to haunt Europe for a considerable time to come and we are still no where near any idea of what will be the final outcome.
You can follow Mr Maugham on his Twitter feed for more information and updates on his campaign.