Northern Ireland High Court rejects Brexit Challenges

As the BBC report notes, the High Court in Belfast has dismissed two judicial review challenges to the way the UK Government intends to invoke Article 50 of the Treaty on European Union to trigger withdrawal from the EU.

One of the legal challenges, by victims’ campaigner Raymond McCord relied on legal aid.  The other, involving Sinn Féin, the SDLP, the Green Party and Alliance MLA David Ford, has been funded, directly or indirectly, as the News Letter reported, by US billionaire Chuck Feeney and his Atlantic Philanthropies organisation.

From the BBC report

A landmark legal challenge against Brexit has been rejected at the High Court in Belfast.

Two separate proceedings, one by a cross-party group of MLAs and another from victims’ campaigner Raymond McCord, were heard earlier this month.

A judge ruled there was nothing in the 1998 Good Friday peace agreement to prevent the government triggering Article 50, the formal legal process for leaving the EU.

All of the issues raised by the applicants were rejected by the court.

…the judge ruled that prerogative power could still be used, arguing that triggering Article 50 is merely the start of a legislative process in which acts of parliament will be necessary.

“While the wind of change may be about to blow, the precise direction in which it will blows cannot be determined,” he said.

He concluded that discussing the use of prerogative power to enact the EU referendum result was not suitable for a judicial review.

It had also been argued that the Good Friday Agreement gave the power of sovereignty to the people of Northern Ireland and that the Westminster government could not therefore make the region leave the EU.

But the judge rejected that argument as well, saying he could not see anything in the agreement or the relevant legislation that confirmed that view.

It’s worth noting that the court agrees with the NI Attorney General, and senior legal adviser to the NI Executive.

From the summary of judgement

The Court’s Assessment of Issue 1

Mr Justice Maguire said he was unable to identify any particular provision which expressly sought to limit or alter the prerogative power of the executive in the context of the notification under Article 50(2).  The issue therefore becomes whether the prerogative has become unavailable by reason of any necessary implication arising out of any of the statutory provisions read in the light of their status and background.  The judge said there seems, in the present case, to be a distinction to be drawn between what occurs upon the triggering of Article 50(2) and what may occur thereafter:

“The actual notification does not, in itself, alter the law of the UK.  Rather, it is the beginning of a process which ultimately will probably lead to changes in UK law.  On the day after the notice has been given, the law will in fact be the same as it was on the day before it was given.  The rights of individual citizens will not have changed – though it is, of course, true that in due course the body of EU law as it applies in the UK will, very likely, become the subject of change.  But at the point when this occurs the process necessarily will be one controlled by parliamentary legislation, as this is the mechanism for changing law in the UK.”

Mr Justice Maguire then considered the context of the various statutory provisions.  He said they are concerned with the operation of the new institutions in circumstances where, in accordance with the then existing law, there was membership of the EU:  “The bodies do not, as their raison d’etre critically focus on EU law”.    The judge said it would be an over-statement to suggest, as the applicants do, that a constitutional bulwark central to the 1998 arrangements would be breached by notification:  “This would be to elevate this issue over and beyond its true contextual position”.

The judge concluded that it is inapt for the applicants to talk in terms of notification changing the rights of individuals or of the operation of institutions becoming transformed by reason of the invocation of Article 50(2):

“The reality is, at this time, it remains to be seen what actual effect the process of change subsequent to notification will produce.  While the wind of change may be about to blow the precise direction in which it will blow cannot yet be determined so there is a level of uncertainty, as is evident from discussions about, for example, how NI’s land boundary with Ireland will be affected by actual withdrawal by the UK from the EU.  The court is not persuaded, for the purpose with which this judicial review is concerned, prerogative power has been chased from the field or that statutory power (in the form of the 1998 Act) has displaced it in accordance with the test described above.  Rather, it is the court’s view the prerogative power is still operative and can be used for the purpose of the executive giving notification for the purpose of Article 50.  This, however, is said without prejudice to the issues which have been stayed and which are under consideration in the English courts.”

Further

The Court’s Assessment of Issue 2

For the purpose of this judgment, the Court assumed that there was a convention in NI that Westminster would not legislate for NI within the devolved area without the consent of the Northern Ireland Assembly.  The main question for the Court is whether that convention is in play on the facts of this case.  This requires the court to decide whether such legislation as the UK Parliament may pass for the purpose of giving notice under Article 50(2) comes within the scope of this convention as it applies in NI.  The appropriate test is whether the Westminster legislation is “with regards to devolved matters”.

In the Court’s view, the answer to this question lies in a consideration of the scheme for the distribution of legislative competence found in the 1998 Act.  Mr Justice Maguire said that applying Schedule 2 to the 1998 Act, the better view is that any legislation for the purpose of notification under Article 50(2) would be legislation relating to an excepted matter, ie it would be legislation concerning relations with the European Communities and their institutions.  It would not, in the Court’s view, be legislation “with regards to devolved matters”, even if one was to adopt a broad approach to the meaning of this phrase.  Accordingly, the convention has no application to the scenario with which Issue 2 is concerned.

The judge said that if this view was incorrect, the Court had great difficulty in seeing how this convention could be viewed as enforceable via legal proceedings given its status as a convention.  He said the situation may be different in Scotland but this Court will leave this to the Scottish courts to decide.

And

The Court’s Assessment of Issue 3

The Court considered that there is a substantial area of overlap between some of the grounds put forward under this issue and those which have been dealt with at Issue 1.   Mr Justice Maguire said the Court has grave doubts about the justiciability of much of the ground covered under this heading as there are some exercises of prerogative power which are still viewed as inappropriate for judicial review because of their subject matter, for example those relating to the making of treaties or matters of “high policy”.  He said it is difficult to avoid the conclusion that a decision concerning notification under Article 50(2) made at the most senior level in UK politics, giving notice of withdrawal from the EU by the UK following a national Referendum, is other than one of high policy.  Accordingly, it fits well into the category of prerogative decisions which remain unsuitable for judicial review.  The judge therefore rejected these factors as grounds of challenge.

More from the summary

The Court’s Assessment of Issue 4

The Court agreed with the submissions of the intended respondents and the Attorney General and rejected the applicants’ arguments on this issue.  Mr Justice Maguire said that the nature of the impugned decision (the notification of an intention on the part of the UK to withdraw from the EU) cannot properly be regarded as carrying out a function relating to NI:

“It is a function being carried out by the Prime Minister or the Secretary of State for Exiting the EU or, perhaps, the Secretary of State for Foreign Affairs and is not a function carried out by the Secretary of State for NI or by the NIO.  Consequently, in the Court’s view, section 75 has no purchase on this issue and is not engaged.”

The judge said that if the Court is wrong, and section 75 is engaged on the facts of this case, the claim being advanced of breach of section 75 is premature because the point at which consultation, screening and impact assessment may be viewed as being required is yet to occur.  Article 50(2) represents the start of a lengthy process which lies ahead and it would be much too early to seek to subject the process to the sort of analysis referred to.  In the event that this argument had to be addressed, it should be addressed by using the process set out in Schedule 9 to the 1998 Act.

And finally

The Court’s Assessment of Issue 5

Mr Justice Maguire said he was not aware of any specific provision in the Good Friday Agreement or in the 1998 Act which confirms the existence of the limitation which the applicant contends and which establishes a norm that any change to the constitutional arrangements for the government of NI and, in particular, withdrawal by the UK from the EU, can only be effected with the consent of the people of NI.  Further, the Court could not identify material which would cause it to imply such a limitation.  The judge said this was not surprising as if such a limitation exists it would be reasonable to have expected it to have been highlighted in the run up to the Referendum.  Further, it would have the most unusual result of requiring a second Referendum to be held in NI within a short time of the people of NI having gone to the polls in respect of the same issue in a national referendum where the national outcome was in favour of withdrawal.

Mr Justice Maguire said that section 1 of the 1998 Act is of no benefit to the applicant as it is clear that this section (and the relevant portion of the Good Friday Agreement) is considering the issue only in the particular context of whether NI should remain as part of the UK or unite with Ireland.  He said it was also difficult to see how the Court can overlook the importance of the terms in which the 1998 Act are cast or to deviate from what to date has been plain, namely that the UK Parliament has retained to itself the ability to legislate for NI without the need to resort to any special procedure:  “Any suggestion that a legitimate expectation can overwhelm the structure of the legislative scheme is not viable”.  The judge rejected the applicant’s submissions in this area. [added textual emphasis]

Conclusion

The Court indicated that in respect of Issues 1, 2, 3 and 4 it was prepared to grant leave but not in respect of Issue 5.  In respect of all issues, the Court dismissed the applications. 

The full judicial decision can be read here.

Adds  As the Guardian report highlights

A high court judge ruled that the Good Friday agreement in 1998 could not be used to grant Northern Ireland exemption from the UK’s decision to leave the European Union.

A victim of loyalist terrorism, Ulster politicians and community groups argued in court that because 56% of the Northern Ireland electorate voted to remain in the EU, the region’s devolved parliament should have the right to vote on staying inEurope.

But Mr Justice Paul Maguire dismissed this argument, pointing out that the Good Friday agreement was constitutionally relevant only “in the particular context of whether Northern Ireland should remain as part of the UK or unite with Ireland.”