Dublin case may end-run Supreme Court action


It is deeply ironic that after a referendum debate which was fought and won with the crudest of simplistic arguments, discussion has now moved to the Supreme Court in London where every spoken word and phrase is weighed and studied from every conceivable angle. Even though the judges decided to leave of their wigs and lovely red gowns, it makes magnificent theatre because of the army of barristers paid and unpaid hanging on every word, possibly waiting for the slip of a tongue that will lead to a new and lucrative case elsewhere, or maybe even bring down a government.However, the real European drama may be about to shift to the Four Courts in Dublin.

The core issue in London is whether the government can trigger Article 50 or whether parliamentary approval is required to do so. Both sides accept that once triggered, Article 50 is irrevocable and the Supreme Court seems to be going along with that interpretation. But barrister Jolyon Maugham is taking action in the High Court in Dublin to have the issue of revocability determined by the European Court of Justice (ECJ). At this point we should probably take the advice of senior counsel but we have neither the time nor the money so we have to do our own interpretation. If Maugham succeeds in getting a referral to the ECJ, all Brexit timetables will be shot to pieces, British Brexit politics will be simply unimaginable and much of the debate unprintable. The Supreme Court judges in London could of course refer the issue to the ECJ themselves but that is thought to be politically unlikely to put it mildly. Maugham’s tactics are quite fascinating: he is alleging that Ireland, the EU Commission and the EU Council have all broken EU law by excluding the UK from EU meetings before Article 50 has been invoked. If that fails he has a fallback: Article 50 has in fact already been invoked, by Theresa May in October when she told EU leaders that Britain was leaving the Union. In which case the EU and by implication Ireland are guilty of not starting negotiations with May.

He also wants to try a separate point: does invoking Article 50 automatically take the UK out of the European Economic Area (EEA) or would that require a whole different decision- making process? This is interesting because as he pointed out in an Irish Times interview, almost all the problems that Brexit will impose on Ireland would disappear if the EU were to remain in the EEA. This issue has also been raised in the context of the Supreme Court case and nobody in the army of barristers is offering an intelligible interpretation. But other ironies abound. In order to stay in the EEA, as a non-EU member the UK would have to rejoin the European Free Trade Area (EFTA). Older readers may remember this was pretty much a British creation in the 1960s when De Gaulle was blocking their membership of the Common Market. For a while they thought they had an alternative dissident union going, but gradually most EFTA members including the UK graduated to the EEC, leaving a rump of Iceland, Norway, Switzerland and mighty Liechtenstein. Sixty years ago before the discovery of North Sea oil, Norway was the poor relation in EFTA, but not now – and it is threatening to veto British re-entry.