There’s no guarantee Ireland’s new Brexit case will get the referral it wants

Article 50 plus EU UK flags Brexit mashup, based on pixabay imageIt’s not everyday that the prospect of an action in the Irish High Court makes worldwide headlines. But a case about the mechanism by which a member state can depart from the European Union is doing just that.

The background lies in last June’s referendum in the United Kingdom, in which the majority voted leave the EU. As a matter of European law, the departure process is provided in Article 50 of the Treaty on European Union. The UK Prime Minister, Theresa May, has stated repeatedly that she wants to begin this process before the end of March next year, and the House of Commons on Wednesday voted to approve this timetable.

The Article 50 process is a recent enough creation. It was inserted into the Treaty by the Treaty of Lisbon in 2007, and it came into force in 2009. It provides that a departing state must notify the European Council of its intention to leave; and it gives the EU and the departing state two years to negotiate the departure arrangements. But the departure of a state from the EU hasn’t happened before; so we are in uncharted waters, both politically and legally; and ambiguities in the text of Article 50 don’t help.

It is not clear, for example, what form the notice to the European Council must take. Neither is it clear whether the two year process can be suspended, or whether a state which has started the process can change its mind and stop the withdrawal process. Nor is it clear what impact withdrawal from the EU would have on the withdrawing state’s relationships with other European bodies, such as the European Economic Area (the EEA). Where a matter of EU law is unclear, the Court of Justice of the European Union (the CJEU) in Luxembourg is the only authoritative source of a binding answer. And Article 267 of the Treaty on the Functioning of the European Union provides a mechanism by which a national court dealing an issue of EU law can seek a preliminary ruling from the CJEU. So, any party to a case raising an unclear issue of EU law, such as Article 50, can ask the court to refer that issue to the CJEU.

The plaintiffs seeking a reference from the High Court to the CJEU about the meaning of Article 50 are likely to be Members of the European Parliament for various UK constituencies [a draft statement of claim is here (pdf)], possibly including some from Northern Ireland. It’s constitutional litigation, but really the continuation of politics by other means. Nevertheless, the sight of politicians making constitutional arguments about political grievances is not an unusual one in Irish courts.

Joan Collins, independent TD for Dublin South-Central, has challenged the constitutionality of legislation under which the Minister for Finance issued promissory notes to EBS and Anglo Irish Bank at the height of the financial crisis. She lost in the High Court [see Collins v Minister for Finance [2013] IEHC 530 (26 November 2013)], and the Supreme Court has reserved judgment in her appeal. David Norris is now a well-known Senator. Much earlier in his career, he sought a declaration that the legislation criminalising homosexual acts was unconstitutional. He lost in the Irish courts [Norris v Attorney General [1984] IR 36, [1983] IESC 3 (22 April 1983)], but ultimately prevailed in the European Court of Human Rights in Strasbourg [Norris v Ireland 10581/83 (1991) 13 EHRR 186, [1988] ECHR 22 (26 October 1988)]. Patricia McKenna, when she was an MEP, challenged the constitutionality of partisan government expenditure on a referendum, and was successful in the Supreme Court [see McKenna v An Toaiseach (No 2) [1995] 2 IR 10 (rtf)].

Nor is it unique for politicians to seek references to the CJEU from the Irish Courts. Thomas Pringle, independent TD for Donegal South-West, challenged the European Stability Mechanism Treaty, which provides for a €500 billion permanent rescue fund for the 17 EU member states using the euro. The Supreme Court sought a preliminary ruling from the CJEU. He lost in both courts [see Pringle v Ireland [2012] 3 IR 1, [2012] IESC 47 (19 October 2012) and Case C-370/12 Pringle v Ireland [2012] ECR I-nyr, [2012] EUECJ C-370/12 (27 November 2012)].

Indeed, neither is it unique for foreign politicians to make constitutional arguments about their political grievances. Michael McGimpsey is, at present, Ulster Unionist MLA for Belfast South, and has served as Minister in various portfolios in the Northern Ireland Executive. He, and his brother, Christopher, challenged the constitutionality of the Anglo-Irish Agreement. Their challenge was dismissed in both the High Court and the Supreme Court [McGimpsey v Ireland [1990] 1 IR 110 (rft), [1990] IESC 3 (1 March 1990)].

If MEPs do start a case in the High Court, the defendants are likely to be the Irish state and various EU bodies, including the EU Commission and the European Council. Under Article 50, the EU Commission on behalf of the EU conducts the negotiations with the departing state. The Commission has already appointed former Commissioner Michel Barnier to prepare for and lead these negotiations with the UK, but they have so far declined actually to conduct any negotiations, on the grounds that it does not believe that notification under Article 50 has yet been given. Once it is, then the Article provides that the departing state cannot participate in the discussions about its withdrawal at the European Council. But, until that process is commenced, the normal rules apply, and the not-yet-departing state continues to participate in all EU business in the usual way, including engaging with the Commission and taking part in meetings of the European Council.

Politicians making constitutional arguments about political grievances are not unusual in Irish courts

It seems that there have already been at least 3 meetings of the European Council – the body composed of the leaders of member states – from which Britain, and specifically Theresa May, has been excluded [and she’s been excluded from their Christmas dinner], and this could give rise to two Article 50 questions that could be raised in the High Court case. On the one hand, if this exclusion is a function of Article 50, then it may mean that the European Council believes that the Article 50process has already commenced. If it has, then the EU Commission is in breach of Article 50 in its refusal to negotiate with the UK. On the other hand, if the EU Commission is right, and the withdrawal process has not yet commenced, then the European Council may be in breach of its general Treaty obligations to deal with the UK in the usual way. If either of these scenarios is made out, then Ireland would be in breach of its Treaty obligations by allowing that to happen. In particular, it would be in breach by permitting the European Council to exclude the UK.

Moreover, as MEPs, the plaintiffs will be affected by the precise date on which the withdrawal finally happens, as that is the date on which they will cease to be MEPs. It matters to them whether the clock is already running on the two year period, and whether it can be stopped. Any Northern Irish MEPs are likely to raise questions under the Good Friday Agreement. And other arguments will no doubt arise as the case evolves.

However, even though an Article 50 issue could arise, it is not certain that a court would refer it to the CJEU. It is not enough that the plaintiffs ask for the reference – it’s actually the court’s decision whether to make it. The issue of EU law must be unclear, and resolving it must be necessary to the resolution of the case. Even then, the High Court and the Court of Appeal have discretion in this decision. Only the Supreme Court must refer.

It is probable that this case will at least get off the ground, in the sense that the necessary paperwork will be filed to start it. Moreover, it is also very likely that it will achieve sufficient maturity to make a CJEU reference about the interpretation of Article 50 more than plausible. And it is more than possible that the CJEU will decide that the Article 50 process can be interrupted or discontinued – certainly, the balance of the academic discussions of these points since June is overwhelmingly that the process can be suspended, and that the UK can withdraw from it [for example, my musings on the issue are here and here].

However, apart from the legal complexities, there is a very great banana skin in the way of the claim. What has been announced is an online initiative to raise funding for a possible case, in much the same way that the challenge that reached the UK Supreme Court earlier this week began, another (relating to leaving the EEA) is gearing up, and (if it is not the same thing) there may even be yet another in the offing. However, the High Court recently held that professional third-party funding of litigation is not permitted at Irish law [see Persona Digital Telephony Ltd v Minister for Public Enterprise [2016] IEHC 187 (20 April 2016)]. This is under appeal to the Supreme Court, but it does raise the question whether crowd-funding for an Article 50 case would fall foul of this prohibition.

On the other hand, many important constitutional challenges have been test cases funded by supporters. To take only one example, in the late 1970s and the early 1980s, the Married Persons Tax Reform Association put a legal team together, found the plaintiffs, and raised funds, for the successful constitutional challenge to treating a wife’s income as her husband’s for tax purposes [see Scannell (2000) and Bambrick (2010) (pdf) on Murphy v Attorney General [1982] IR 241 (rtf)]. Since then, many non-governmental organisations have taken and supported public interest litigation, and countless parties to untold cases have raised funds in multifarious ways.

The Article 50 case is therefore likely to be able to avoid the funding banana skin, and to go on making worldwide headlines for quite some time to come.

Note: this is an extended and hyperlinked version of a piece that appeared on the Sunday Business Post website (sub req’d) yesterday. I’ve used their headline as the title of this post, though the balance of the argument is that a referral to the CJUE is likely if a case does indeed get off the ground.