High Court in Belfast rejects Brexit challenge

The High Court in Belfast dismissed two judicial review challenges to the Government's proposed invocation of Article 50 of the Treaty on European Union, which would trigger the UK's withdrawal from the EU: McCord [2016] NIQB 85.

The case considered only issues unique to the Northern Irish proceedings.  The Court has not made any decision on the issues which are being considered by the High Court in London in the Miller case, where a judgment is expected very soon on the question whether the prerogative power of the Government to trigger Article 50 can be used without reference to the UK Parliament. Please click here for our briefing note on this issue.

The prerogative power has not been displaced by the Northern Ireland Act 1998

The applicants contended that, since the Good Friday Agreement of 1998, various features of Northern Ireland's constitutional landscape meant that the prerogative power to trigger Article 50 (which might otherwise exist) had been displaced. In particular, they argued that the Northern Ireland Act 1998 ("the Act"), read along with the Belfast Agreement and the British-Irish Agreement (together commonly called “the Good Friday Agreement”), was "inextricably woven" with the UK's continued membership of the EU, such that "the operation of EU law should be viewed as a building block of Northern Ireland's constitutional protections".

The Court found that there was no particular provision in the Act which had the express effect of limiting or altering the prerogative in respect of a notification under Article 50. The Court also found that there was no necessary implication to that effect arising from the Act.

In making this decision, the Court found that the UK Government giving notice under Article 50 to leave the EU does not itself alter the law of the United Kingdom, although it would set in process events which would probably lead to changes in United Kingdom law, over which Parliament would have a say.

The consent of the northern ireland assembly would not be required for any westminster legislation authorising notification under article 50

The applicants contended that, if an Act of Parliament is required to allow the Government to trigger Article 50 (a matter which is at issue in the Miller proceedings), then any such legislation must also receive the consent of the Northern Ireland Assembly. The applicants argued that failure to obtain such consent would be inconsistent with a constitutional convention that the consent of the Northern Ireland Assembly must be obtained for any Westminster legislation affecting the Assembly's devolved powers.

The Court assumed the existence of such a convention, but decided that any such legislation would relate to an excepted matter (relations with the European Communities and their institutions). Accordingly, it would not be legislation "with regards to devolved matters" and the consent of the Northern Irish Assembly would not be required.

Other public law restraints on the exercise of prerogative power were not relevant

The applicants argued that there were a number of public law restraints on the exercise of the prerogative power to trigger Article 50, including requirements such as not giving excessive weight to the result of the referendum, only exercising the power in a manner consistent with Northern Ireland's constitutional place in the UK, and only exercising the power in a manner consistent with the UK's obligations under the British-Irish Agreement.

The Court rejected these arguments. It considered that they overlapped considerably with the arguments that the power had been displaced by the Act, which it had rejected. It also considered that the subject matter of the power in question, relating to treaties and "high policy", remains unsuitable for judicial review on such grounds.

There has been no relevant failure by the northern ireland office to assess the impact on equality of opportunity of any exercise of article 50

The applicants argued that the Northern Ireland Office is a public Authority under the Act and is obliged to assess the impact on equality of opportunity of policies adopted in the exercise of its functions.

The Court found that triggering Article 50 is an exercise for the Prime Minister, the Secretary of State for Exiting the EU, or possibly the Foreign Secretary, and not for the Secretary of State for Northern Ireland or the Northern Irish Office. Accordingly, the Northern Irish Office's obligations under the Act are not triggered. In the alternative, the Court found that any claim for a breach of this obligation under the Act would be premature.

The people of Northern Ireland do not have a substantive legitimate expectation that there would be no change in the constitutional status of northern Ireland without their consent

One applicant, Mr McCord, contended that the Good Friday Agreement and/or the Act confirmed the existence of a norm that any change to the constitutional arrangements for the government of Northern Ireland, and in particular any withdrawal of the UK from the EU, can only occur with the consent of the people of Northern Ireland.

The Court found that no part of the Good Friday Agreement or the Act which had such an effect. In particular, section 1 of the Act, which states that Northern Ireland "remains part of the United Kingdom and shall not cease to be so without the consent of the majority of the people of Northern Ireland", relates to the question of whether Northern Ireland should remain as part of the UK or unite with the Republic of Ireland – not to the UK or Northern Ireland's continued membership in the EU. Further, the terms of the Act, and the constitutional arrangements of the UK, would not allow any legitimate expectation to override the structure of those arrangements (especially the sovereignty of Parliament) in any case. Accordingly this argument was rejected.

What next?

The decision may well be subject to appeal and it is likely that the Miller case will be appealed whatever its outcome. 

The probability is that appeals in both cases will leapfrog the appellate courts and be determined by the Supreme Court, which may hear the appeals during December.

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