It is long past time that those who funded the Dublin case were given an update on how their money was spent.
I regret that there is still a lack of clarity.
This is not now attributable to any member of the Counsel team. Martin Hayden SC always understood himself to be acting on the basis that he would not raise an invoice unless the litigation was successful. Jo Dalby SC has agreed a sum in set...Read More >>
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The purpose of the case is to answer two questions. First, whether a notification under Article 50 can be revoked. Second, whether, by leaving the EU, we automatically leave the European Economic Area.
Let me tell you why they're important.
The first question: can a notification under Article 50 be revoked?
In the referendum we were asked: "Should the United Kingdom remain a member of the European Union or leave the European Union?"
But, more than six months on, we still understand little about what leaving the European Union means. Or who is to decide? And on what authority?
There will be no cake and eating it.
To leave we will need to make trade-offs between financial contributions to the EU; being inside the largest market in the world which is on our doorstep; whether you and I can live and work throughout Europe; funding the National Health Service; restricting immigration; and having absolute control over our laws. These choices will shape the kind of future our country has. They are - quite obviously - incredibly important. Who is to make these choices? And to what controls should they be subject?
The answer is complex. Parliament cannot conduct our negotiations with the EU. Only the Government can. But the Government possesses little or no democratic mandate for these choices: there is nothing about them in its Manifesto. So it must be guided by - and accountable to - Parliament. Only Parliament can speak for all of us.
The Government has promised to produce a plan for its Brexit negotiations. And to allow Parliament to scrutinise that plan. The Government says it will then notify the EU (under Article 50) that the UK wishes to begin the formal process of withdrawing from the EU. It will negotiate with the EU a withdrawal agreement and, likely, an agreement shaping our future relationship with our biggest trading partner. But what happens when it returns? How will Parliament hold it to account?
If we cannot withdraw our Article 50 notification then Parliament will have to accept those agreements - whatever their content. Like a Model T Ford, it will be able to choose any colour it wants, but only so long as it's black. The Government will have free reign to do exactly what it wants. There will be no control by Parliament.
But if the notification can be withdrawn Parliament will have a choice: it will be free to reject that deal. And, because the Government knows this, and because it wishes to deliver the result of the Referendum, it will have to try to do the deal that Parliament wants or it will risk the possibility that Parliament throws the deal out.
So it is only by establishing whether we can revoke Article 50 that Parliament can fulfil its obligation to deliver a Brexit for the 100%.
There are other reasons, too, why we should want to know the answer to this question whether Article 50 is revocable.
Members of the Government assured us we would have a Brexit that will deliver economic prosperity to the country. And that the deal will not involve trade-offs.
But what if they cannot deliver?
What if the deal is a poor one, one that falls far short of the assurances that were given? What if the economy is in trouble, and unemployment and inflation start to rise and living standards to slump, and the deficit to balloon? What then?
In a general election, if a Government breaks its promises, you kick it out next time. That's 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 people were unhappy about the way in which the Referendum campaign was conducted. What 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?
It is entirely right, and democratic, that normal, important control on the telling of lies operates here in relation to Brexit: the most important decision in the life of our nation for at least a generation.
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, it will be open to them to choose to change their minds.
And there's absolutely nothing wrong with that.
The second question: if we leave the EU do we also leave the EEA?
The best way to think of the European Economic Area - or EEA - is as a more straightforwardly economic relationship between its members.
Remember the Referendum question?
It asked about the EU but it asked nothing about the EEA. So we could leave the EU but – by remaining in the EEA –remain inside the Single Market. This would also be consistent with the Government's 2015 Manifesto which stated that "we benefit from the single market" and promised to "safeguard British interests in the single market."
Whether we leave despite these statements is a political question for tomorrow. But answering it involves some legal questions for today. No one knows whether, by triggering Article 50, we also commit ourselves to leaving the EEA. That is a question only the Court ofJustice of the European Union can answer.
Staying in the Single Market will deliver free movement rights for ourselves and our children, along with the many economic advantages to being inside the largest market in the world, one that is on our doorsteps. It is important that we understand whether, in a post Article 50 world, we remain in it.
What happens next?
When sufficient funds are raised we will initiate proceedings in the Irish courts. I have reason to believe that one or more MEPs will agree to act as Claimants. We will not take any money you pledge until they (or a suitable alternative) do.
We will ask the Irish courts to make a reference to the Court of Justice of the European Union on the two questions- both of EU law and so both for that Court - whether (1) Article 50 is revocable and (2) whether triggering Article 50 also means we automatically cease to be members of the EEA.
The case is being brought in Ireland because the Irish Government has, we say, colluded in a breach of the EU Treaties by wrongly excluding the UK from meetings of the EU Council. We can only make that claim in the courts of Ireland.
Ireland also has a major stake in whether the UK remains in the EU or EEA. We came into the Single Market together, if we leave it alone there will be enormous economic and social disruption to both Ireland and Northern Ireland.
Who will act for the Claimants?
I have instructed McGarr Solicitors which has successfully taken several cases from Dublin to the Court of Justice in Luxembourg. I have been advised by Mr Joseph Dalby SC in Ireland – SC are barristers of equivalent status to UK Queen's Counsel – and he will be assisted by one other SC and one Junior Counsel. I am confident that this is a proper and sensible way to proceed.
How will the monies raised be spent?
They will be spent on court and legal fees. We may also need to make provision for the expenses of the Defendants. Each of the lawyers we engage will act below their normal market rate.
A part of the monies will be spent covering legal costs incurred getting to this stage including drafting the pleadings (which you are able to read at waitingfortax.com)
What about transparency?
Transparency is very important in a public interest, publicly funded, action such as this. Where it is possible to do so without prejudicing our position or breaching an order of the court we will publish material relevant to the case. In particular, our detailed pleadings, signed by Counsel, will be published simultaneously with the launch of this Crowd Funding application on waitingfortax.com.
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It is long past time that those who funded the Dublin case were given an update on how their money was spent.
I regret that there is still a lack of clarity.
This is not now attributable to any member of the Counsel team. Martin Hayden SC always understood himself to be acting on the basis that he would not raise an invoice unless the litigation was successful. Jo Dalby SC has agreed a sum in settlement of his fees. And Ronan Lupton, to whom I am especially grateful, has, likewise, agreed a sum in settlement.
The difficulties have arisen with McGarr solicitors. The matter settled in May of this year. But, despite my requests, they have still failed to tender a bill. They instead prepared a document which they describe as their “best estimate” of the costs. You can read that document here. And they have refused all requests to engage in any discussion about the charges they propose to levy.
That document lays claim to a sum in excess of that to which (I believe) they are entitled. And it dishonestly – a word I obviously use with care – asserts I have a contingent liability to a sum of money (being the fees of Martin Hayden SC) to which on any view they are not entitled. McGarr say that their “best estimate” offers to settle the fees of Martin Hayden for nothing. But to that I say their “best estimate” also suggests, falsely, that there are circumstances in which I may be liable to pay those fees, namely if I do not agree to pay what they demand. But there are and were no such circumstances.
Those of you who are lawyers will understand what I mean when I say that spending other people’s money implies obligations over and above those engaged in spending your own.
My response to McGarr’s position has been as follows. I have raised lengthy and detailed complaints with the Law Society of Ireland about Simon McGarr and Edward McGarr’s conduct. Those complaints are being considered by the Law Society. I have complained of McGarr’s conduct to the National Economic Crime Bureau of the Garda: the Garda is considering whether a criminal offence has been committed by Simon or Edward McGarr. And I have asked specialist Counsel to draft a letter before action against the firm of McGarr.
I hope it goes without saying that these steps have and do involve considerable time – and likely expense – which are mine alone to bear.
All of that having been said, and as things presently stand, the situation is as follows. I hold slightly over £3,100 returned by Counsel in the case. McGarr are likely to – I do not yet have their concluded position – release to me the further sum of €4,893.332 to which (even on their view) they have no entitlement. They have informed their personal indemnity insurers of the forthcoming claim against them and it is my hope (and indeed my expectation) that their insurers will settle my action against the firm on terms that will enable a release of a still further sum.
I have agreed with CrowdJustice – as is consistent with their terms – that I may nominate further litigation against which recovered sums may be expended. I hope to be able to announce in due course litigation with ends similar to those I tried and failed to pursue in Dublin.
Our decision to discontinue
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.
Best wishes, and please continue to support our work here,
Jolyon Maugham QCDirector, Good Law Project.
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