Legal proceedings being issued in Ireland aim to give the UK the option to decide to remain in the EU.

As we reported earlier this week, the Supreme Court has ruled that an Act of Parliament is required for the Government to send an Article 50 notice (Notice) and therefore to start the formal process of exiting the European Union.  Whilst this creates additional complications for the Government, its slim majority and the stance of the Opposition Labour Party (i.e. to give effect to the referendum result) mean it is most probable that such legislation will ultimately be passed and the Notice will follow.

However, a separate crowdfunded set of legal proceedings is being brought by tax barrister Jolyon Maugham QC, which could be even more influential on the process of Brexit.  A letter before action has already been sent to the Irish Attorney General and the claim is due to be issued in the Irish High Court very shortly.

What is the effect of an Article 50 Notice?

The Notice will start negotiations to determine the terms on which the UK will exit the EU: the UK will cease to be a member of the EU treaties either through an agreed deal or, if no agreement is reached, by the “clock running out” on Article 50 two years after the Notice.

Article 50(3) provides that the period of negotiation can be extended if the European Council agrees unanimously with the departing member state.  There is no question that, should all parties unanimously agree, the UK could remain a member of the treaties.

Why might the UK want to withdraw the Notice?

The two-year guillotine in Article 50 gives a strategic advantage in negotiations to the EU: if the UK fails to obtain an acceptable exit deal within the period, it will cease to be a member of the EU treaties in any event.  As the deadline looms, the Prime Minister’s assertion that “no deal for Britain is better than a bad deal for Britain” may be put to the test.

Mrs May has also stated that the Government will put “the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force”.  If the choice is merely between a bad deal and an imminent exit with no deal at all, Parliament might be more willing to approve a bad deal.

If, in fact, there is a third option of the UK remaining in the EU, it will change the tone of the negotiations.  EU negotiators opposed to Britain leaving might offer less favourable terms to make remaining seem like the least disastrous option. By contrast, Britain’s own negotiating position might be improved if the two-year deadline can be removed.

What is the aim of the Irish proceedings?

The crowdfunded legal proceedings to be issued in Dublin intend to establish if the Notice can be unilaterally withdrawn by the UK after it has been sent.  Its backers hope to do so through a referral to the Court of Justice of the European Union (CJEU) to rule on the meaning of the EU treaties.

Isn’t this clear from Article 50 itself?

The UK’s Brexit Minister, David Davis, told a select committee in December 2016, “We don’t intend to revoke it. It may not be revocable. We don’t know.”

Article 50 itself does not expressly state whether there is a right to revoke the Notice.  On one reading such a right might be inconsistent with the relatively complete process as set out in in the provision.

However, the author of Article 50 of the Lisbon Treaty (actually a British peer, Lord Kerr of Kinlochard), has stated:

“It is not irrevocable. You can change your mind while the process is going on. During that period, if a country were to decide, ‘actually we don’t want to leave after all’, everybody would be very cross about it being a waste of time. They might try to extract a political price but legally they couldn’t insist that you leave.”

The ability for a country to withdraw a notification of an intention to leave a treaty before it takes effect also has a basis in the Vienna Convention on the Law of Treaties (Article 68).

Wasn’t this decided in the Miller proceedings?

No. The Miller case proceeded on the assumption, by both sides, that the Article 50 notification could not be withdrawn. Both the Divisional Court and Supreme Court proceeded on that assumption, Lord Neuberger expressly stating that the Supreme Court was not expressing a view (paragraph 26 of the judgment).

It is arguable, despite its own submissions, that the Government might have had a better chance of success in Miller had it been established (probably by a CJEU referral) that the Notice could be revoked.  The Supreme Court’s reasoning that UK law and rights would inevitably change as a result of the Notice would not have the same force if the Notice is not final.

Why might the Government not want to know?

The fact that the Government did not raise the issue of revocability in the Miller proceedings might simply mean that it was considered a hopeless argument.  It is also possible that the Government was concerned that a finding of revocability would be harmful to negotiations, for the reasons given above.

However, the concept of withdrawing the Notice also does not fit with the Government’s own stated intention that Brexit will inevitably proceed, deal or no deal, no matter what arises over the next two years.

A revocable Article 50 would give much encouragement to those calling for a second referendum on Brexit terms, such as the Liberal Democrat leader Tim Farron.  A referendum on the final deal makes little sense if the UK’s options are, in reality, restricted to accepting that deal or being ejected from the EU with no deal.

If, however, there is the option of continuing with the status quo once the electorate is fully aware of the real alternatives, there is a reasonable case for asking for the “will of the people” to be confirmed.

A summary blog from Jolyon Maugham QC of the Good Law Project on the challenge can be read here.  Find all our Brexit coverage, including on the recent Supreme Court decision, here.