Unlike my old friend Charles Moore, I think the government was right to concede that the question of whether Article 50 could be triggered by an exercise of the royal prerogative was a proper matter for the courts to consider. What is more if, as a matter of law, Article 50 can’t be triggered without a further Act of Parliament, it is plainly right that we should know that as soon as possible so that steps can be taken to lay a bill before Parliament. It may well be that Gina Miller brought her claim with the aim of preventing, or at least diluting, Brexit. But her motives are irrelevant. If the government was proposing to do something unlawful it should be stopped from doing it. Anyway, as time has gone on it has become plain that the overwhelming likelihood is that, whatever the Supreme Court says, a simple triggering of Article 50 will be achieved by the end of March (it must be wholly improbable that the House of Lords will refuse to bow to the combined efforts of the people – through the referendum – and the elected chamber).
But there are at least two other legal actions under way or just starting which are thoroughly tiresome and foolish. In England, there is a High Court claim for a declaration that, even if it would be lawful for Britain to leave the EU, it is not lawful for us to leave the single market. I can’t find anywhere where the argument is spelt out coherently, but there have been press reports to the effect that, as the question on the ballot paper for the referendum was silent about the single market, it would not be open to the government to agree a deal with the EU which led to our departure from the single market. I suspect the claim will be given short shrift by the courts. But what about the Irish case?
A London tax barrister has raised £70,000 to bring a claim in the Irish courts against the Council of Ministers, the Commission and the members of the EU other than the United Kingdom alleging, strange though this may seem, that Britain has already triggered Article 50 and that the defendants are in breach of European law in having failed to start negotiations with the UK. The contention continues with an assertion that the triggering of Article 50 is revocable. The aim, apparently, is to persuade the Irish High Court to refer the claim to the European Court of Justice. I am no expert in these matters, but my guess would be that, for the ECJ to have jurisdiction, there must be an allegation that someone has done something wrong, hence the rather artificial sounding contention that Article 50 has already been triggered and the EU institutions are in breach of their duty to start negotiations. The real objective, according to the tax barrister, is to get the ECJ to declare that Article 50 is revocable in the hope that that would lead to Parliament insisting on a further referendum once the terms of Brexit have been agreed (if it is not revocable – which is the contention of both the government and Ms Miller in the Supreme Court case – there would clearly be no point in a further referendum).
Some might think it odd that the tax barrister has chosen the Irish rather than the British courts to bring his claim. But he explains that he has a cunning plan. He thinks it unlikely that the British courts would agree to refer his claim to the ECJ, presumably because they wouldn’t be taken in by the rather dotty assertion that we have already triggered Article 50. The Irish courts, however, will be embarrassed at being asked to rule on matters which plainly concern the UK rather than Ireland and will be all too eager to pass the buck to the ECJ.
Sometimes lawyers can be too clever by half. Our chum the London tax barrister certainly seems to come into that category. For my own part, I have greater faith than he does in the ability of the Irish courts to do their job properly: my guess is that they will kick him into touch pretty quickly.