Mr Justice Maguire, sitting today in the High Court in Belfast, dismissed two judicial review challenges in Northern Ireland to the way the Government intends to invoke Article 50 of the Treaty on European Union to trigger withdrawal from the EU.
On 23 June 2016, a referendum was held in the UK on whether to remain a member of the EU or to leave. The result of the Referendum was that 51.89% of the valid votes which were cast in the UK were in favour of leaving the EU while 48.11% were in favour of remaining. In NI, 55.8% of the valid votes were in favour of remaining and 44.2% were in favour of leaving. On 24 June, the Prime Minister accepted the result of the referendum and indicated that it would be for a new Prime Minister to decide when to trigger Article 50 of the Treaty on European Union (“TEU”), the process by which withdrawal from the EU is effected.
In August 2016, two applications for judicial review of the Government’s intention to use the Royal Prerogative to invoke Article 50 were lodged in the High Court in Belfast. The first application was made by Raymond McCord. The second application was made by multiple applicants including members of the Northern Ireland Assembly, persons with close associations with the voluntary and community sector in Northern Ireland and human rights organisations (this application was referred to in the judgment as that of “Agnew and others”). In both cases, the contention was that Article 50 could not be triggered by the use of the Royal Prerogative and that legislation (or other mandate from Parliament) was required for this purpose. The intended respondents are HM Government, the Secretary of State for NI and the Secretary of State for Exiting the EU. The Attorney General for Northern Ireland provided written and oral representations as the court was of the view that the applications raised devolution issues.
The Court deal with the two applications together under an expedited timetable because of their urgency. The “rolled up” hearing meant that the Court considered both the issue of leave to apply for judicial review and the issue of appropriate relief in the event that leave to apply for judicial review is granted. The Court also considered the relationship these proceedings should bear to similar proceedings which are underway in England and Wales concerned with the means by which Article 50 is to be triggered and the question of the displacement of prerogative executive power by statute (R (Miller) and others v Secretary of State for Exiting the European Union). The Court, in view of the overlap between the challenges, sought to avoid these proceedings duplicating those in England and Wales and accordingly stayed the consideration of the central issues which the English courts will deal with. The proceedings before the High Court in Belfast therefore sought to concentrate on the impact of NI constitutional provisions in respect of notice under Article 50. The grounds of challenge which will be dealt with in Millar and others have therefore been held over pending the outcome of the English litigation.
The grounds of judicial review
There are substantial areas of commonality between the two applications which the court distilled into five principal grounds:
ISSUE 1: The applicants contend that the prerogative power cannot be exercised for the purpose of notification of intention to withdrawn from the EU in accordance with Article 50(2) TEU because it has been displaced by the Northern Ireland Act 1998 read along with the Belfast Agreement and the British-Irish Agreement and other constitutional provisions. The applicants contend that, in these circumstances, an Act of Parliament is required to trigger Article 50(2).
Mr Justice Maguire set out in detail the salient features of the NI constitutional landscape which have operated since the Good Friday Agreement in 1998, including the Northern Ireland Act 1998 (“the 1998 Act”), the North-South Ministerial Council and the British-Irish Council. He also detailed case law on the test to be applied by the Court when determining whether prerogative power must give way to statutory power and, if so, how the court must apply the test to the alleged displacing provisions. The test which should be applied will reflect a series of factors and cannot be reduced to a single bright line rule which governs every case. These factors include whether there is express language in the statute specifically limiting the operation of the prerogative, whether there is a necessary implication to that effect, whether the statute empowers the doing of the very thing that the prerogative has dealt with up to the point of statutory intervention, whether the statute is direct on its effect on the subject matter in question and whether the use of the prerogative power would be incompatible or inconsistent with the relevant statutory provision.
Mr Justice Maguire said the Court must apply this approach to the provisions in the 1998 Act read against its constitutional background in order to conclude whether the effect of the legislation in this case displaces prerogative power in relation to the function of notification for the purpose of Article 50(2) of TEU. Among other things, the applicants suggested that:
•The 1998 Act has been “inextricably woven” with the UK’s continued membership of the EU;
•Parliament has not authorised any action under Article 50, and that to allow Article 50 to be triggered without an Act of Parliament authorising it would “automatically result in the removal or abrogation of rights” currently enjoyed by UK citizens;
•Notification under Article 50 involves, in effect, the “beginning of a far reaching process of amending the 1998 Act” which could cut across domestic, EU and international dimensions and upset “the delicate constitutional balance” established by the Good Friday Agreement and the 1998 Act;
•The operation of EU law should be viewed as a building block of NI’s constitutional protections and continued membership is a necessary element of the North-South and East-West structures and relationships which form the kernel of the constitutional arrangements for NI in modern times.
The intended respondents submitted that there was nothing in the provisions relied upon by the applicants that either expressly or by necessary implication had the effect of curtailing the ability of the executive to use prerogative power for the purpose of Article 50(2). Further, the terms of the EU Referendum Act did not specify what steps the Government was required to take in the event of a vote in favour of leaving the EU. The matter, it was suggested, was left to the executive to decide and no case could be made that it was any part of the statutory intention that there would have to be a further Act of Parliament before Article 50(2) could be triggered. Nor, it was contended, could it be said that any of the provisions of the 1998 Act were directed at this issue:
“The most which could be said in this area, according to the intended respondents, was that the Good Friday Agreement and the provisions made subsequently in the 1998 Act were written against the context then prevailing, including the UK’s membership of the EU. … It was no part of the arrangements made that any guarantee was being offered or provided about possible departure by the UK or Ireland from the EU at some date in the future. On the contrary, there was a working assumption that both states were likely to remain in the EU, but at that stage no-one had in mind that a later date on or other might (by a vote of the people in a referendum) decide to leave”.
The Attorney General supported the arguments of the intended respondents. As he put it: the triggering of Article 50(2) “will amend not even a comma or full stop of the Northern Ireland Act 1998”.
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.”
ISSUE 2: If an Act of Parliament is required, there is 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(2) TEU.
Mr Justice Maguire said that, as he held that the intended respondents are entitled to proceed to notify under Article 50(2) using prerogative power and that an Act of Parliament is legally unnecessary for this purpose, the second issue strictly does not arise for consideration. He said the court would however consider it in case it is wrong in its conclusions in respect of Issue 1.
The case made on behalf of the applicants in Agnew and others is that in the event of an Act of Parliament being required for Article 50(2) purposes, there is an obligation on the respondents to seek and receive the consent of the Northern Ireland Assembly to such legislation by obtaining from it the passage of a Legislative Consent Motion authorising such legislation. The applicants argued that the failure to seek and procure such consent would be in breach of a “constitutional convention” whereby the consent of the Northern Ireland Assembly will be obtained for Westminster legislation affecting the devolved powers of the Assembly.
The intended respondents submitted that as a matter of law, the Parliament of the UK can pass any law in relation to NI and is uninhibited by the need to obtain a Legislative Consent Motion. Further, that such an Act would constitute legislation on an excepted matter whereas the convention is about obtaining the consent of the NI Assembly to Westminster legislation which falls into the devolved category. Finally, the terms of the convention envisage that there would be occasions where Parliament may choose to legislate for NI without seeking consent despite the fact that the legislation may be in respect of a transferred matter.
The Attorney General strongly supported these submissions. He submitted that the test for the application of the convention in NI was whether the UK Parliament was legislating for NI “with regard to devolved matters”. He said that when the scheme of legislative competence was applied, any Act of Parliament which had the object of giving notification for the purpose of Article 50(2) would not be legislation with regard to devolved matters.
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.
ISSUE 3: There are a variety of public law restraints on any exercise of prerogative power in any event. These include issues about the requirement to take all relevant considerations into account and not to give excessive weight to the referendum result.
This issue arises in the context of how the intended respondents should go about exercising prerogative power for the purpose of notifying under Article 50(2) and therefore assumes that the Court will not find in favour of the applicants on Issue 1. The applicants made a number of grounds of challenge: that the prerogative may only be exercised in a way which is not inconsistent with NI’s unique constitutional place in the UK; that the prerogative may only be exercised after properly having taken into account and having enquired into all relevant alternatives to the entirety of the UK exiting the EU; that the prerogative may lawfully be exercised only if the Government has not given excessive weight to the result of the Referendum; that the prerogative must be exercised in a manner which upholds EU law for so long as it remains effective in the UK; and that the prerogative must be exercised in a manner which respects obligations of the UK such as those arising under the British-Irish Agreement.
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.
ISSUE 4: There has been a failure by the Northern Ireland Office to comply, prior to notification being given under Article 50 TEU, with the terms of section 75 of the Northern Ireland Act 1998 and with the terms of its own equality scheme.
The applicants argue that the NIO is a public authority for the purpose of the 1998 Act and must therefore assess the impact on equality of opportunity of policies adopted in the exercise of its functions. The intended respondents, however, contended that section 75 was not engaged on the facts of this case and that the Secretary of State is not a designated public authority. Further, any complaint with regard to a failure by the NIO to act consistently with its own Equality Scheme should be dealt with by means of the tailor made provisions in Schedule 9 to the 1998 Act. The intended respondents also contended that this issue is being raised prior to notification of the intention to withdraw from the EU and that the Government is therefore only at the outset of a process with a long way to go. In short, no sensible assessment could be made at this stage. The Attorney General supported the intended respondents’ position.
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.
ISSUE 5: Mr McCord contends that Article 50 TEU cannot be triggered without the consent of the people of NI and it is asserted that the Good Friday Agreement has created a substantive legitimate expectation that there would be no change in the constitutional status of NI without the consent of the people of NI.
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.
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.