Brexit challenge fails in Belfast High Court

Posted By: October 28, 2016



Victims campaigner Raymond McCord had taken a legal challenge to Brexit at the High Court in Belfast. Picture by Hugh Russell

Irish News (Belfast). Friday, October 28,  2016 

A CHALLENGE to the British Prime Minister’s power to trigger Brexit negotiations has been dismissed at Belfast High Court. 

The case was taken by a cross-community group of politicians and human rights campaigners including Raymond McCord whose son was murdered more than 20 years ago.

Mr. Justice Paul Maguire said the implications for Northern Ireland were still uncertain after British Prime Minister Theresa May said she would begin exit negotiations with Europe before March.

A cross-party group of politicians had claimed the country should have a veto on an exit and said the Stormont Assembly should have a say on whether to trigger negotiations with Europe.

Raymond McCord had a separate Brexit challenge surrounding its impact on the peace process heard alongside that of the politicians at the High Court in Belfast.

Mr Justice Maguire said: “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 evidenced by the discussion about how the Northern Ireland land border with Ireland was affected by withdrawal from the EU.”

He added: “In respect of all issues, the court dismissed the applications.”

Read: Brexit will not undermine the Good Friday Agreement, Theresa May tells House of Commons

Speaking outside the court after the ruling Mr. McCord said he would appeal to the Supreme Court in London.

With his lawyers due to seek formal permission to appeal at a further hearing next month, he said: “This is not the end of the matter. The judge left the door open when he said it could go to a higher court, and more than likely that is going to be the Supreme Court in London.”

The campaigner claimed the democratic will of 56 per cent of the Northern Ireland public who voted to remain is being ignored.

“This judgment doesn’t mean it’s over by any means. We are entitled to take this to London and we intend to.” 

The court did not consider the role of Parliament in the calling of talks – separate legal proceedings are taking place in England.

The Belfast case was heard earlier this month and concentrated on the impact on the Northern Ireland constitution of Theresa May’s proposed action.

The judge rejected five grounds of appeal:

• That the prime minister’s royal prerogative power cannot be exercised to trigger negotiations because it has been displaced by the 1998 Good Friday Agreement and associated laws and an Act of Parliament is required;
• That, if an Act of Parliament is required, the Stormont Assembly should consent to it
• That the referendum result should not be given excessive weight when considering whether to trigger talks
• That the Northern Ireland Office had failed to comply with equality legislation
• That the Good Friday Agreement had created an expectation that there would be no change to Northern Ireland’s constitutional status without the consent of its people.

The judge said it was difficult to see how the court could overlook the fact that the Parliament had retained the ability to legislate for Northern Ireland without any special procedure.

He said this power of the prime minister’s was not one in which the court could intervene: “Any suggestion that a legitimate expectation can overwhelm the structure of the legislative scheme is not viable.”

 The judge said: “It is difficult to avoid the conclusion that a decision… following a national referendum is anything other than high policy.

“Accordingly it seems to fit well into the area of prerogative powers which are unsuitable for judicial review.”

He added: “Such a decision does not lend itself to the process of judicial review and remains an example of the decision which should be viewed as non-justiciable.”

He said the process was being carried out by the prime minister or Brexit Secretary David Davis, not Northern Ireland Secretary James Brokenshire.

“In the court’s view, section 75 (surrounding equality in Northern Ireland) has no purchase on this issue and is not engaged.”

The judge added: “In the light of various factors the court does not consider that any of the arguments advanced under this issue are relevant and rejects them as a ground of challenge.”

Mr. Justice Maguire said he was not aware of any specific provision in the Good Friday Agreement or the 1998 Northern Ireland Act which established that any change to the constitutional arrangements for the Government of Northern Ireland, particularly UK withdrawal from the EU, could only be effected with the consent of the people of Northern Ireland.

He said if such a limitation existed it would be reasonable to have expected it to have been highlighted before the June referendum.

He said it would have the most unusual result of requiring a second referendum to be held in Northern Ireland within a short time of the people of Northern Ireland having gone to the polls on the same issue during a national referendum when the national outcome favored withdrawal.

Mr. McCord’s case, funded by legal aid, argued that there can be no Brexit for Northern Ireland as its people are sovereign in respect of Constitutional change and this is based on the text of the Good Friday Agreement and the Northern Ireland Act.

The 1998 Good Friday Agreement is essentially a written constitution which forms part of the British constitution, which is not written.

Mr. McCord’s barrister QC Ronan Lavery argued that Northern Ireland’s unique position means that major constitutional changes such as leaving the EU cannot be imposed by a Westminster government because the Good Friday Agreement led to a transfer in sovereignty over Northern Ireland’s constitutional position.

During the trial earlier this month the barrister drew the analogy with the UK being a marriage: “The husband can’t sell the family home without the wife’s consent.”

Theresa May has announced she will trigger Article 50 of the Lisbon Treaty, the formal process for confirming the UK’s departure, by the end of March 2017.

But the legal team behind Mr. McCord, whose son Raymond McCord Jr was killed by the UVF in north Belfast in 1997, contended that the move is illegal without first securing Parliamentary authorisation.

Politicians including Alliance assembly member David Ford, SDLP leader Colum Eastwood, Sinn Fein assembly member John O’Dowd and Steven Agnew of the Green Party were also seeking to judicially review the British Government’s move towards quitting the EU.

Ciaran O’Hare, of McIvor Farrell Solicitors, who is representing Mr. McCord said: “Thus far, Theresa May and our own First Minister have stated ‘Brexit means Brexit’ but we say that this statement is misconceived. Mr. McCord is highly disappointed that our first minister has adopted a submissive attitude and is unwilling to stand up for what the people of Northern Ireland have voted for. To say that Brexit should proceed, even though the people of Northern Ireland did not vote for it, is unconstitutional and plainly wrong.”

Mr. MCord’s team argued that Brexit would have the greatest impact on Northern Ireland which shares a land border with the rest of the EU.

Concerns were also raised that a departure from the EU could lead to a repeal of the Human Rights Act and possibly even withdrawal from the European Convention on Human Rights.

Mr. McCord’s son Raymond was murdered in 1997. An investigation by the ombudsman found police had colluded with loyalist paramilitaries in over a dozen similar murders. No officer has been charged in connection with these killings.

Mr. McCord took the case amid concerns that European peace money, which goes towards victims of the Troubles, may be discontinued. McCord fears that if the UK leaves the EU he will no longer have access to the European Court of Human Rights.