A lawyer representing the government has told those trying to stop Brexit through the courts: “That ship has sailed”.
Speaking during the first legal challenge to Brexit to come before the courts since June’s EU referendum result, Tony McGleenan QC told Belfast High Court that there was no legal basis for stopping the government from implementing the will of the UK people to leave the EU.
On the second day of the judicial review hearing, Dr McGleenan argued that the triggering of Article 50 should be “properly characterised as an administrative step to withdraw from an international treaty”.
The case, which seeks to force Parliament to vote on Article 50 – which will formally begin the process of taking the UK out of the EU – has been brought by Sinn Fein, the SDLP, Green Party and Alliance Party leader David Ford (acting personally), as well as several unspecified human rights groups. It is running concurrently to a separate but more far-reaching case brought by Raymond McCord.
Mr McCord’s QC, who is being funded by taxpayers after legal aid was granted for the challenge, argued that the Belfast court should be able to stop Brexit for the entire UK because there had not been a Leave majority in the Province.
A key aspect of the case will hinge on whether Royal Prerogative powers – now largely exercised by ministers – can be used to trigger Article 50. The general legal principle is that if statue provides for a certain action, then it cannot be carried out under prerogative.
Dr McGleenan said that using the Royal Prerogative to give effect to the EU referendum result was “classically within” the remit of such powers. And he argued that to do so was “not illegitimate, unorthodox or undemocratic”.
He added: “There is no legal impediment to the government giving effect to the will of the people”, adding that the UK joined what was to become the EU using Royal Prerogative and that it could leave using the same mechanism.
He took the court through several occasions since 1972 – including one last year – where Parliament could have chosen to put in statute that only it could decide to take the UK out of the EU. On each occasion, Dr McGleenan said, MPs had chosen not to do so.
He argued that the references to EU law in the Northern Ireland Act – which enacted the 1998 Belfast Agreement –referred to the “empirical fact” that EU law was in operation at the time – not that it must continue to remain on the statute book.
He said there was “nothing in the Northern Ireland Act which requires ongoing membership of the EU” and said that the act’s section on excepted matters – over which Stormont has no power – explicitly put the issue outside the scope of Stormont.
He added: “This is something which Parliament has said is nothing to do with the Northern Ireland Act.”
Speaking about the question of whether the UK should leave the EU, he said: “That ship has sailed” and added: “It is telling that most of the applicants’ arguments reduce to arguments about consequences, not about powers.”
Yesterday also saw the Attorney General, John Larkin, intervene in the case in support of the government position.
Speaking last in the case, he was derisive of the applicants’ arguments, telling the court that what had once been a “tolerably plump turkey” now only had bones for him to pick over.
He said: “Parliament was, is and for the foreseeable future remains, sovereign.”
He said that those who negotiated the Belfast Agreement did not seem to have contemplated that possibility of leaving the EU. But, he argued, that does not matter because “nothing in it precludes either [the UK or the Republic of Ireland] from doing so”.
Earlier, David Scoffield QC, who is representing the political parties and human rights groups, said that “the Northern Ireland institutions are obliged to implement community law and obliged not to contravene community law”. For that reason, he said, “one of the constitutional pillars of Northern Ireland is EU law”.
In its written argument, the government said that the Northern Ireland Act “assumes, but does not require, ongoing membership of the EU”, an analysis with which Mr Scoffield took issue.
Mr Justice Maguire interjected to ask: “Surely if there was [in the Northern Ireland Act] a preclusion of leaving the EU , that would have been stated expressly?”
The judge went on: “Is the weakness of your argument not that there is nothing expressly dealing with this [in the Act]?”
Mr Scoffield accepted that there was no such explicit prohibition, but argued that it was not necessary to have such an express provision in order to make the use of the Royal Prerogative unlawful.
He argued that it was “plainly” the case that using the Royal Prerogative would go against the will of Parliament, expressed in the Northern Ireland Act.
Mr Scoffield went on to argue that if the court does direct Parliament to vote on whether Article 50 should be triggered, then the Commons should put before Stormont a Legislative Consent Motion – a mechanism whereby the Assembly is asked to vote on allowing Westminster to legislate on its behalf.
He said that he was not asking the court to rule “at this stage” on what should happen if the government failed to ask Stormont to pass a Legislative Consent Motion.
At one point, the judge expressed a degree of incredulity, saying that the arguments being presented were “interesting”, but the “unequivocal” common law, including House of Lords’ judgements, was that Parliamentary sovereignty was a settled constitutional fact.
He said: “The proposition that the court is going to overturn the principle of Parliamentary sovereignty is not realistic.”
Mr Scoffield replied: “We’re not asking you to do that” and argued that while Parliament retained ultimate authority, the executive branch of government should bring the Article 50 issue to Parliament and that MPs should be “given the benefit of the devolved administrations’ views”.
The judge said: “Surely these are matters of politics for the government to decide, not matters for a court to decide?”
Representing the government, Tony McGleenan QC said: “The court has heard submissions that touch on matters of politics and submissions which have been rhetorical in nature at times.”
The case is expected to conclude tomorrow.