Dublin Case Update: We Have Filed Our Written Legal Case

We always want to move quickly, don’t we? Especially those of us who know that, even if Brexit is reversed, the uncertainty does enormous damage. We have not been able to move as quickly as I wanted. We wanted to wait until we had seen the UK Government’s Article 50 notice. But we should be able to move quickly now.

So what progress have we made.

We have filed our written legal case. You can read it here.

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 – should want to understand what is and what is not possible; what will and will not be the consequences. We must not, with issues of this magnitude, grope around in the dark.

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 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?

So what happens next?

We – myself and Steven Agnew (a Member of the Northern Ireland Assembly and the Green Party of Northern Ireland), Jonathan Bartley (the Co-Leader of the Green Party of England and Wales), and Keith Taylor (an MEP and member of the Green Party of England and Wales) – have further strengthened our legal team. We are represented by McGarr Solicitors, now instructing Ronan Lupton BL, Joseph Dalby SC and Martin Hayden SC.

We today served our written legal case on Ireland and its Attorney General. They will consider that case and have indicated a willingness to discuss the way forward. Given that a resolution of these issues is in everyone’s interests we hope and expect that these discussions will be productive. We hope and expect to be able to announce that they are.

On Monday we will serve a ‘motion’ requesting an urgent directions hearing. That motion contains a draft of the questions we will ask the High Court in Dublin to refer to the Court of Justice in Luxembourg. We will publish that motion on the website of the Good Law Project along with a hearing window for the motion. Sign up here for updates. It is possible, depending on the stance of the Irish Government, that a reference could be made at that directions hearing.

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. 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.

Jolyon Maugham QC

Director, Good Law Project.