There might be another, somewhat related, reason why Sinn Féin delegated their now-backbench MLA, John O’Dowd, to front the party’s support for the High Court legal action against Brexit – as a party of the NI Executive they may have seen legal advice from the Attorney General for Northern Ireland, John Larkin, QC.
Earlier reports seemed to suggest that, having “written to the parties indicating his belief the cases raise a devolution issue around constitutional arrangements“, and the applicants subsequent agreement to a notice of devolution to allow his participation in the hearing, the NI Attorney General would be supporting the MLAs position. That doesn’t appear to have been the case.
We may have to wait for the court ruling to see more details of the NI Attorney General’s submission, and it’s worth noting that the NI First and deputy First Ministers appear to have declined the invitation to attend the hearing, but here are the reports I’ve been able to find.
From the BBC report
On Wednesday afternoon, the court heard from Attorney General John Larkin, QC for the NI Executive, who said the Good Friday Agreement put no obstacle in the way of an EU withdrawal.
He asked if the Belfast Agreement could work if any of the players were not members of the EU.
“The answer is inevitably yes,” he said. “We already have that.”
He cited the Isle of Man, Jersey and Guernsey, none of which are in the UK, or the EU.
Stormont’s chief law officer, Attorney General John Larkin QC, also took an opposing stance to the MLAs involved in the litigation.
Looking to a post-Brexit future, he argued that “not one word or phrase in the Belfast Agreement” would be affected.
Mr Larkin also pointed to the examples of the Isle of Man, Jersey and Guernsey – none of whom are in the UK or EU – to back his case that the peace treaty can still work once the UK leaves.
Counsel for the NI Secretary of State addressed the use of Royal Prerogative, from the News Letter report
Counsel for the Secretary of State responded [to David Scoffield QC – who is representing Sinn Fein, the SDLP, Green Party and Alliance Party leader David Ford (acting personally), as well as several unspecified human rights groups] by insisting the Government is legally entitled to use the royal prerogative to carry out the people’s will to get out of the EU.
He described the power as “common currency” in making and withdrawing from international treaties – pointing out that it was also the method used to join the EU.
Rejecting claims that Parliament is being sidestepped in the process, the barrister said the legislative body will be involved in any law changes resulting from Brexit.
According to his case the 1998 Northern Ireland Act created no substantive legitimate expectation that its people will be consulted on before quitting the EU.
He also attempted to rubbish arguments that a withdrawal would damage the Good Friday Agreement by stressing the Government remains committed to the peace process.
Did the NI Executive seek, or receive, legal advice from their chief legal adviser, the NI Attorney General, on this issue? If not, why not? Those are rhetorical questions, btw. Details of such legal advice to administrations in the UK, and elsewhere, are not usually made public.