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The High Court of Northern Ireland has dismissed the Brexit challenge

McCord’s (Raymond) Application [2016] NIQB 85

On the 28th October 2016 Mr. Justice Maguire, sitting in the High Court of Belfast, dismissed two judicial review challenges in Northern Ireland to the manner in which the government intends to invoke Article 50 of the Treaty on the European Union to trigger the withdrawal of the UK from the EU.

On 23rd June 2016, a referendum was held in the UK on whether to remain a member of the EU or to leave.  While the result of the referendum was that the majority of votes cast in the UK were to leave the European Union, the majority of voters in Northern Ireland voted to remain.  The Prime Minister said she could decide when to invoke the withdrawal clause in order to exit the EU.

Two applications were lodged in the High Court, the first was made by Raymond McCord and the second by a group of local politicians, human rights groups and individuals from the voluntary and community sector.  In light of the overlap with proceedings in England and Wales, the Court stayed consideration of the means by which Article 50 is to be triggered and the question of displacement of prerogative executive power by statute.  However, the English proceedings did not deal with the unique requirements of Northern Ireland constitutional law and statute.

The proceedings in Belfast focused on the impact of Northern Ireland’s constitutional provisions in terms of the notice under Article 50.  It was argued that Parliament should have a full debate before the Government triggers Article 50 to consider the implications of and options for Brexit as it will affect Northern Ireland. The two applications were dealt with together. 

There were five principal grounds advanced by the applicants:

1.     The applicants argued that the prerogative power could not be exercised to trigger Article 50 because it had been displaced by the Northern Ireland Act 1998, surrounding Agreements and other constitutional provisions.  The judge could not identify any provision which limited the prerogative power of the executive and explained that the actual notification does not alter the law.  It would begin a process which may lead to changes in the law but such a process will be controlled by Parliament.

2.     The Court also had to consider, if an Act of Parliament was required, whether there was a requirement for a Legislative Consent Motion to be granted by the Northern Ireland Assembly before such legislation could be passed authorising notification in accordance with Article 50.  Since the first argument was refused, it was not considered necessary to deal with this matter however Mr. Justice Maguire expressed the view that the subject matter in the case was not a devolved matter.

3.     The third issue was the fact there are various public law restraints, including the requirement to take all relevant considerations into account and not to give excessive weight to the referendum result.  The Court considered that there was substantial overlap between this point and the first issue.  The judge felt that this matter was a high policy matter that was not justiciable.

4.     The applicants also argued that there was a failure by the Northern Ireland Office to comply with the terms of Section 75 of the NI Act and its own equality scheme, prior to notice being given under Article 50.  The judge rejected these arguments and found that the nature of the decision could not be regarded as carrying out a function relating to Northern Ireland and that Section 75 was not engaged.  Even if it was engaged, he felt that the claim being advanced was premature.

5.     Mr McCord contended that Article 50 could not be triggered without the consent of the people of Northern Ireland and that the Good Friday Agreement created a substantive legitimate expectation that there would be no change in the constitutional status of NI without the people’s consent.  The judge found that there was no provision in the NI Act or Belfast Agreement that established such a requirement.

Justice Maguire rejected all five arguments but granted leave in respect of the first four issues, refusing leave on the fifth ground.

Read the Summary of the Judgment here.

Northern Ireland High Court