Article 50 in the Irish High Court: cometh the hour, cometh the case?

Article 50 plus EU UK flags Brexit mashup, based on pixabay imageIt is a rare provision of a Treaty, or a constitution, or an Act, that achieves fame or notoriety simply by means of its number. The First Amendment is so famous the world over that we do not need to be told that it is a clause in the Bill of Rights to the US Constitution. Section 31 was once just as notorious in Ireland. Rapidly joining this pantheon is Article 50. It is an Article of the Treaty on European Union, inserted by the Treaty of Lisbon, to provide a mechanism by which a Member State may withdraw from the EU. It has been plucked from the obscurity of an EU Treaty and thrust into the glare of worldwide headlines by the UK referendum on 23 June 2016 in which the majority of participants voted to leave the EU.

The interpretation of Article 50 has provoked much political and legal discussion, but little consensus. Indeed, I have commented twice on this blog (here and here) on the question whether a notice served by the UK under that Article may be suspended or withdrawn. Only the Court of Justice of the European Union (CJEU) can answer that question authoritatively. Writing in today’s Irish Times, Jolyon Maugham QC of Devereux Chambers, London, makes an intriguing suggestion as to how the CJEU might come to provide that answer:

Ireland, do the UK a favour: refer Brexit to Europe

A legal decision that article 50 is revocable would allow for change of mind about leaving

… In a wide ranging interview with London’s Financial Times, Koen Lenaerts [President of the CJEU] observed there are “many, many different ways” that Brexit could end up before him. … if the UK courts will not refer the revocability of article 50 to the European Court, might the Irish courts? They could and they should.

[links and emphasis added]

Apart from the political and practical concerns with this suggestion, there are at least two big legal questions here – Maugham’s “could”, and Maugham’s “should”. As to “could”, how could the Irish courts come to make a reference to the CJEU on the issue of the revocability of Article 50? What is the nature of the case that poses the question? What are the facts that compel the High Court in Dublin to make the reference? Who are the parties (plaintiff(s) and defendant(s))? What is the plaintiff’s cause of action? What remedies does the plaintiff seek? One of the many lessons of Re McCord [2016] NIQB 85 (28 October 2016) and R (Miller and dos Santos) v Secretary of State for Exiting the European Union (Rev 1) [2016] EWHC 2768 (Admin) (03 November 2016) is: cometh the hour, cometh the cases. I can see the outlines of at least four possible cases; doubtless there are others; [update: a potential fifth, which is already before the courts, was drawn to my attention on twitter here and here]; indeed, if a case in the High Court does end up making a reference to the CJEU, I would not be at all surprised if it were to be founded upon an entirely different set of facts.

First, the potential impact of Brexit on the complex Ireland-Northern Ireland cross-border legal relationships is so unclear that litigation to shed some light on this important issue cannot be ruled out. The most appropriate plaintiff here would be the Irish government; and, if so, the most likely defendant would be Her Majesty’s Government. However, given that the former wants to maintain cordial relations with the latter, and that both governments want to negotiate the best possible Brexit deal for the border, such a claim is beyond the bounds of political plausibility at the moment. If the claim were taken in the High Court in Dublin, it could also run into heavy questions of sovereign immunity on the part of HMG; but the scope of that immunity could turn on questions of EU law, and the temporal applicability of EU law would turn on the interpretation and revocability of Article 50.

Second, in the same circumstances and in light of McCord, other plaintiffs from Northern Ireland cannot be ruled out. It would not be the first time that public figures from Northern Ireland sought vindication in the Irish courts (see, eg, McGimpsey v Ireland [1990] 1 IR 110 (pdf), [1990] IESC 3 (1 March 1990)). The plaintiffs might seek a declaration that, pursuant to the one of the many agreements relating to Northern Ireland made between the UK and Irish governments (such as the Anglo-Irish Agreement in 1985 (pdf), the Good Friday Agreement in 1998 (pdf), the St Andrews Agreement in 2006 (pdf), the Hillsborough Agreement in 2010 (pdf), the Stormont House Agreement in 2014 (pdf or the Stormont House Agremeent and Implementation Plan of 2015 (pdf)) and/or to associated legislation or provision of the Constitution (eg, the Good Friday Agreement is referred to in Article 29.7 of the Constitution), they have rights and interests that the Irish government must protect post-Brexit. Some of the arguments might be similar to those in McCord, but many will not. This raises the question of when, as a matter of law, Brexit will occur – and that is entirely dependent upon whether an Article 50 notice, once served, is revocable.

Third, a UK citizen working for the Irish office of a UK government agency or public body may be concerned about some UK rights (such as pension rights) established in the UK before coming to work in Ireland. Many such rights are at present maintained in her favour by EU law, but they are liable to disappear (or at least to be adversely affected) post-Brexit. Such a concerned UK citizen could commence an action in the High Court in Dublin, against her employer, seeking a declaration about the nature of her UK (pension) rights post-Brexit. Again, this raises the question of when that will as a matter of law occur, and that is entirely dependent upon whether an Article 50 notice, once served, is revocable.

Fourth, there is strong anecdotal evidence that UK higher education institutions are being dropped from EU research projects and proposals because of post-Brexit funding fears. I am sure that the same refusal to engage with UK citizens is being replicated in all sorts of other sectors, and in other EU member states. UK citizens working in Ireland on EU-funded projects, whether in higher education or elsewhere, must be feeling vulnerable right now. If it has not happened already, it is only a matter of time before one of them is told by his employer that his position will terminate upon Brexit, as both EU funding for the post, and EU law protections for the employee, will cease on that date. In an action against the employer, the plaintiff would then argue that it is not clear when EU law protections will cease, because that is entirely dependent upon whether an Article 50 notice, once served, is revocable.

[Update: fifth, reported earlier this year that a man facing sexual assault charges in the UK says he cannot be extradited on foot of a European Arrest Warrant because of the Brexit referendum vote.]

In all of these scenarios, once the questions arise of what Article 50 means and in particular whether a notice served under it revocable, authoritative answers can only be provided by the CJEU. And Article 267 of the Treaty on the Functioning of the European Union provides a mechanism by which a court seized of an issue of EU law can seek a preliminary ruling from the CJEU (see Elaine Fahey Practice and Procedure in Preliminary References to Europe (FirstLaw, Dublin, 2006 | Amazon). Effectively, any court may, and a court of final appeal must, refer any unclear question of EU law. This implicates Maugham’s second question: should the Irish courts make a reference to the CJEU on the issue of the revocability of Article 50? If the matter is unclear, and it is, and if the Irish courts are seized of the issue, as well they may be, then the High Court and the Court of Appeal may, and the Supreme Court must, refer the matter to the CJEU.

This could all be rendered moot if the UK Supreme Court, hearing the joined appeals from the McCord and Miller judgments, makes such a reference, as it is gently being asked to do in the McCord appeal. ([20], pp6-7 (pdf)) [Update: however, as Jolyon Maugham comments below, a reference from the London courts may not obviate the need for a reference from Dublin]. The appeal has been listed for 5-8 December; many parties are seeking permission to intervene, some of whom are being granted such permission; so another party may very well argue for a reference to the CJEU about Article 50. If the Supreme Court does not consider that it needs to deal with Article 50 to decide on the question before it relating the competing roles of Parliament, Prerogatives and the People, then it will not make the reference. The Court will pronounce on the constitutional requirements which the UK must follow in order to withdraw from the EU. Following those procedures, at some stage thereafter (if the Prime Minister gets her way, before the end of March next year) the UK government will, pursuant to Article 50, notify the European Council of its intention to withdraw from the EU. And the question of whether that Article 50 notice is revocable will be all the more pressing. Time will tell whether the Irish courts could or should make a reference to the CJEU on that question, but the possibility that they might – as raised by Maugham – is certainly an intriguing one. Whether they do or not, Article 50 will remain for quite some time to come among the rare legal provisions that achieves fame or notoriety simply by means of their numbers.