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Case update 07 April 2017

Dublin Case Update: Initial Hearing Date

Last week I wrote to you with a link to our written case. You can read it here. I also promised that we should now be able to make good progress.

Theresa May has triggered Article 50 and formally begun the process of Britain leaving the European Union.

Brexit, it hardly needs saying, is incredibly important: for the future of the EU, for peace on Ireland, and for the future of the United Kingdom. Anyone rational – whether they support or oppose Brexit, whether they are in the UK, Ireland or the other 26 Member States – should want to understand what is and what is not possible; what options are and are not available. We must not, with issues of this magnitude, grope around in the dark.

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Our case turns on the light. It seeks answers to some very important questions.

First, we need to know whether we can choose to withdraw the notification we served earlier this week. We know that the United Kingdom can decide to Remain in the EU if the other 27 Member States give us permission. But can we withdraw the notification if our Parliament or, in a Referendum on the Final Deal, the people of the United Kingdom decided that they wished to Remain?

Many of the remaining 27 member states fear that giving us the right to withdraw our notification will strengthen our hand in negotiations. But, as I explain here, it does not disrupt the balance set by Article 50.

Second, we need to know what happens to our citizenship rights when we leave. The Good Law Project is hosting a petition to protect those rights. But it is also very possible that EU law gives us acquired rights.

Article 20 TFEU says that citizens of a Member State get EU citizenship rights. It also says our EU citizenship is additional to our national citizenship. But it doesn’t say whether, if you already have EU citizenship and your Member State ceases to be in the EU, you lose that EU citizenship.

Whether we do is a question of vital importance to the lives of British pensioners living in Spain or France. The rights of students studying in Dublin or Brussels. The precious rights we all enjoy to live and work freely throughout the EU.

Third, we say we need to know what happens to our membership of the European Economic Area if we leave the EU. The question whether we leave the single market was not posed on the ballot paper. The Conservative Party Manifesto promised to protect our future in the single market. There are a number of countries who are inside the single market but outside the EU. Even the United Kingdom Government is unsure of the status of the EEA.

Fourth, we all have a stake – but especially those who live there – in protecting the hard won gains of the Good Friday Agreement. The UK and Ireland came into the EU together and have never lived apart. What obligations lie upon the remaining Member States to protect those gains?

Earlier in the week we filed with the High Court in Dublin an application for directions and a supporting affidavit. You can read them here. Essentially we are asking the court to make arrangements for the hearing at which it decides whether to refer our questions to the Court of Justice in Luxembourg. Our application sets out the form of questions we are seeking to have referred to the Court of Justice. That form reflects the four questions I have set out above. There will be a hearing ‘not before 11am’ in the High Court in Dublin.

So what happens next?

On 24 April the High Court will set out a timetable for a final hearing of the question whether to refer. When that final hearing takes place is a matter for the Irish Court but it might be reasonable to expect six weeks. It could be less if the Irish State co-operates. Or it could take more.

If the case gets to the Court of Justice – I expect it to but there can be no guarantees – then we will ask for an expedited hearing of the questions referred. Eleanor Sharpston, the United Kingdom’s Advocate General at the Court, has indicated a hearing would take four to eight months. However, it is also possible that a hearing could take even less time. This case, for example, took two and a half months from the date of reference to the date of decision.

Barring major headwinds it should be possible to have answers to these question by late Autumn.

Jo Maugham QC

Director, Good Law Project.