Why I’m challenging Article 50 at the Irish High Court

08:45 28 December 2016

Jolyon Maugham

Jolyon Maugham


The latest legal challenge to Article 50 – and whether it can later be revoked – is being launched at the Irish High Court. Our democracy needs the law now more than ever.

We wait for the result of the Gina Miller case. The Supreme Court will tell us what must happen before we trigger Article 50. As to what that trigger means? We remain in the dark.

In the meantime, the Government has promised to produce a plan for its Brexit negotiations. And to allow Parliament to scrutinise that plan. Only then will the Government notify the EU that we wish to begin the formal process of withdrawing from the EU.

At this point, it will negotiate with the EU a divorce agreement. But what happens after that?

If we cannot withdraw our Article 50 notification, then Parliament will have to accept that agreement. The alternative will be to leave without one. Faced with the choice between shooting itself in the foot or the head Parliament will choose the former. And, knowing that Parliament has no choice but to accept whatever deal Government negotiates, the Government will do just as it likes.

But if the notification can be withdrawn, Parliament will have an alternative: it will be free to reject that deal. And the Government will know this. And, because it wishes to deliver the result of the referendum, it will have to try to do a deal Parliament finds acceptable or risk the possibility that Parliament throws the deal out.

So if we establish that an Article 50 notification is revocable – and only if we do - we can empower Parliament to deliver, if Brexit there is to be, a Brexit for the whole country.

And there are other reasons why we should want to know whether Article 50 is revocable.

We were promised a Brexit that delivered economic prosperity to the country. And if the Brexiters make good on the promise; if we can have our cake and eat it; and our European neighbours fall over themselves to do trading deals with the UK; and voters do not suffer reduced employment and living standards and the sustainability of our public finances on which our children’s futures depend; if the NHS gets the extra funding it desperately needs and which people were induced to vote to leave to secure; then we will leave.

But if these assurances, examined under the bare, swinging light bulb of reality, prove to be lies; and the lives of working people living in communities too long abandoned by our governing class become harder still, it would be a desperate tragedy if we said to them, because we had not bothered to establish whether the UK had of unilateral right an alternative: “it is too late to turn back. Whatever the cost, we have now to go.”

If the people, having seen with their own eyes what leaving means, wish to remain? Establishing Article 50 as revocable will allow them to.

And a revocable Article 50 restores the operation of democracy.

In a general election, if a Government breaks its promises, you kick it out next time: a vital control on how our democracy functions. It stops, or it should stop, politicians saying whatever they think – true or false – will get them elected. Many of us were unhappy about how the referendum was conducted. And if the evidence comes to show that the campaign was conducted on the basis of false assurances - and MPs are told by their electors that they now feel misled? Why should they be rewarded for their lies?

If a notification under Article 50 can be revoked, voters will get to see whether what they were told was true or false. And if it proves false, and damaging to their economic security? They will change their minds.

I am bringing a case in the Irish courts to seek to establish whether Article 50 is unilaterally revocable. I will ask the Irish courts to refer that question to the Court of Justice in Luxembourg.

It has been said that there is something undemocractic about this course.

But when the Court of Justice hands down its decision about what Article 50 means (a question of EU law which must have the same meaning for all member states and so which only a court whose rulings apply to all can answer) the question what to do with that answer will be one for our democratically elected politicians. They will be able to act, knowing what the law is. Their actions, wielding their democratic mandate, will be informed. And that is all.

It is also said that the action is too soon.

But that argument is the very opposite of right: if anything, it is too late. In a rational world the Prime Minister would not ask our sovereign Parliament to vote on an Article 50 Bill before it knew whether it could reverse Article 50 should the public it serves later so demand.

But even with a reasonable tail-wind we can only reasonably hope to have a decision from the Court of Justice in summer 2017. Meantime, in March 2017 our Parliament will be asked to take an incredibly important step in the life of our nation without fully understanding the consequences.

But better late than never.

A democrat welcomes the delivery of more power to the people. A champion of national sovereignty takes control – unilaterally, as of right – of the power to reverse Article 50 rather than relying on the acquiescence of 27 others. And a seeker of truth gives to the people the right to back out if what they see with their very own eyes falls short of what the estate agent promised.

Jolyon Maugham QC is a barrister at Devereux Chambers and blogs at Waiting for Godot

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