Brexit legal challenges – it's not over yet

With Brexit just a year away several legal challenges are still under way.

28 March 2018
By Oliver Rowland

If you are getting a little lost among them all, here is a round-up.

  • The case brought by Bordeaux lawyer Julien Fouchet to the General Court of the EU, revolving around the legality of the referendum having excluded long-term British expats is still awaiting a decision as to whether it will move to a full hearing. Mr Fouchet said it should be “imminent” but “the court is visibly hesitating and the wait is a little long because the issue is new and important”. His action on behalf of Britons in the EU including Second World War veteran Harry Shindler from Italy could lead to the EU courts ruling the negotiations to be illegal, which he believes could mean another referendum – this time including expats previously excluded due to the ‘15-year rule’ – would have to be held.
  • The case brought to a court in Amsterdam by British expats and backed by British barrister Jolyon Maugham, which seeks a ruling from the ECJ that Britons’ EU citizenship may be retained after Brexit hit an unexpected hurdle when the state of the Netherlands sought leave to appeal against referral of the question to the ECJ. The appeal will be heard on April 19 in Amsterdam.
  • British MPs meanwhile passed a motion which asked the government to seek to ensure Britons may retain EU citizenship. It came after an ‘Opposition Day’ debate on a motion by Welsh nationalist party Plaid Cymru. It is not binding on the government but the government, whose official position is that Britons’ EU citizenship will end after Brexit, will respond with a statement to the MPs by early June at the latest.
  • Scotland’s top court ruled that a case brought by Jolyon Maugham seeking an opinion from the ECJ on whether the UK may unilaterally call off Brexit raised important questions and should have a full hearing. The aim is to clarify if the UK may cancel article 50, for example if MPs vote against the Brexit deal.
  • This comes as an MPs’ debate is to be held on April 30 at 16.30, into the question of whether or not when the UK parliament votes on the deal there should be an option to stop Brexit (as opposed to leaving with the deal or without the deal). It is not expected to lead to a vote. It follows a petition to the parliament and government which obtained more than 100,000 sigatures. 
  • A legal action called #Brexitchallenge has raised almost £90,000 at  It is taking a case against Brexit Minister David Davis saying that there should be a new referendum on the terms of the exit deal. The Best for Britain campaign, one of its backers, has also just launched a billboard campaign calling for the people to have the final say.
  • The Article 50 Challenge  is seeking to show that article 50 of the Lisbon Treaty was never properly triggered because parliament did not directly vote to leave the EU but merely to empower the prime minister to act on a decision already taken by 'the people'. There will be a hearing in the High Court on June 12.
  • March 29 was the deadline under article 127 of the 1994 EEA Agreement for the UK to officially give notice to leave the EEA. Think Tank British Influence argues that this should mean that the UK stays in the wider EEA – and single market – despite leaving the EU. The government is understood to have failed to give notice, British Influence thinks, because it fears it would require an MPs’ vote before doing it as with the article 50 trigger last year.
  • There is also a letter writing campaign under way. British in Europe have been asking people to write to their UK MPs highlighting inadequacies with the current deal that is on the table for Britons in the EU27 and EU27 citizens in the UK. Britons on the continent are being asked to write to the MP for the constituency where they last lived, whether or not they still have a vote due to the '15-year-rule'.

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