Judge to ‘immediately’ consider landmark Brexit court case

Raymond McCord arrives at Belfast High Court on the morning of October 4, 2016.
Raymond McCord arrives at Belfast High Court on the morning of October 4, 2016.
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A judge in Belfast today vowed to give immediate consideration to landmark legal bids to halt the United Kingdom’s planned departure from the European Union.

Mr Justice Maguire’s pledge came as a three-day challenge to Brexit drew to a close at the High Court.

With similar litigation due to get under way in London later this month, he is only being asked to rule on issues specific to Northern Ireland at this stage.

Victims campaigner Raymond McCord and a cross-party group of MLAs have mounted separate bids to have the process for quitting the EU declared unlawful.

Following the hearing Mr McCord, whose son Raymond Jr was murdered by loyalist paramilitaries in 1997, delivered an upbeat assessment of his chances of succeeding.

He said: “I believe, and my legal team believes, he has the power to say Brexit can’t go ahead.”

Prime Minister Theresa May announced at the weekend that she will trigger Article 50 of the Lisbon Treaty, the formal process for confirming the UK is to leave, by the end of March 2017.

But during the hearing it was contended that the move is illegal without first securing Parliamentary authorisation.

During less than an hour of final legal arguments this morning, the judge was told that there had been agreement between the parties that if there is a costs order imposed by the court those costs will be capped - regardless of whether the government or the applicants are asked to pay for the proceedings.

The court was told that this was the same approach which has been taken in the case taken in London, which is due to be heard later this month.

In terms of the application by Raymond McCord, who has been granted legal aid for the case, the public purse will pay irrespective of the side on which any costs order places the financial burden.

The government’s QC, Tony McGleenan, had described the triggering of Article 50 as merely an “administrative step”, arguing that in terms of the substantive decision to take the UK out of the EU “that ship has sailed” with the referendum result.

But this morning David Scoffield QC – who is representing Sinn Fein, the SDLP, Green Party and Alliance Party leader David Ford (acting personally), as well as several unspecified human rights groups – said that the government was wrong to characterise the Article 50 process in that way.

Rather, he said that it was an “act of profound legal, political – and indeed constitutional – importance”.

Quoting case law, he argued that using the Royal Prerogative in these circumstances to begin the process of taking the UK out of the EU would be “an abuse of power”.

He said: “The prerogative is the mere residue of what is left after Parliament has acted [to legislate].” Mr Scoffield argued that legislation such as the Northern Ireland Act had incorporated EU law into UK law to such an extent that using prerogative powers to leave would be going against the will of Parliament.

Mr Scoffield said it was a “quite remarkable proposition” for the government to say that there is no nexus between membership of the EU and the implementation of EU law, something which the Northern Ireland Act states must be undertaken by the devolved institutions in Belfast.

The government argues that it is merely using prerogative powers to formalise the democratic decision of the British people who voted in the EU Referendum to leave the EU.

Ronan Lavery QC for Mr McCord has argued that the court should halt Brexit for all of the UK because a majority in Northern Ireland voted to remain in the EU.

But Mr Scoffield clarified that as far as his clients are concerned “we are not saying that there is no way that Brexit can be lawfully achieved”. Rather, he said, they were arguing that Parliament should be asked to take the decision and as part of that process the Stormont Assembly should be asked to pass a legislative consent motion to endorse the decision.

The passing of such a motion at Stormont would be far from certain, given that almost half the MLAs in the chamber (if Alliance MLAs vote in line with their leader David Ford, who is personally supporting the case) are represented in taking the case which opposes Brexit.

However, in a brief final submission Dr McGleenan highlighted that there was “no impediment” to the Assembly debating the issue and communicating its view to the government.

Addressing the contention from the government and questions from the judge about the absence of any specific legislative bar on the use of prerogative powers to trigger Article 50, Mr Scoffield argued that until the “surprise” result of the referendum there was “no serious suggestion of a UK withdrawal”, so MPs had not considered how such a process should unfold.

And, arguing that the Northern Ireland Office (NIO) should also undertake an Equality Impact Assessment of the implications of Brexit on groups protected by Section 75 of the Northern Ireland Act, such as those of diverse genders, religious views or sexualities, he said: “The NIO must take a position on whether Brexit is good or bad for Northern Ireland and make that position known to the government.”

He said that the government’s written submission to the court stated that the Secretary of State would have “no role” in giving advice to the government about the triggering of Article 50.

He said that Article 50 was “the decisive stage” of the process, with “no way back” for the UK unless all other 27 EU member states agreed to a reversal.

Even though the June 23 referendum backed Brexit, a 56% majority of voters in Northern Ireland wanted to remain. Mr McCord argues that they have a legal right to resist being forced out, although he has hardly featured in the case, with just a passing reference to the fact that he is considering applying for an Irish passport and is concerned about the possibility of losing access to European peace funding and access to the European courts.

His lawyers argue that the 1998 Good Friday Agreement has given the Northern Irish public sole sovereignty to decide on their future.

They also predicted Brexit would have a “catastrophic effect” on the peace process, causing constitutional upheaval amid renewed calls for a united Ireland.

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

The MLAs, whose case is backed by representatives of the voluntary and community sector in Northern Ireland, claim a Act of Parliament is required before Brexit can take place.

They further contend that the Stormont Assembly should be consulted and asked for its consent.

In closing submissions today David Scoffield QC suggested provisions within the Northern Ireland could become “a dead letter”.

Referring to the impact on devolution, he added: “This is not a case of a mere procedural defect.

“There’s been a complete failure on the part of the Northern Ireland Office to undertake any analysis on the issue.”

Counsel for the Secretary of State responded by insisting the Government is legally entitled to use the royal prerogative to carry out the people’s will to get out of the EU.

He described the power as “common currency” in making and withdrawing from international treaties - pointing out that it was also the method used to join the EU.

Rejecting claims that Parliament is being sidestepped in the process, the barrister said the legislative body will be involved in any law changes resulting from Brexit.

According to his case the 1998 Northern Ireland Act created no substantive legitimate expectation that its people will be consulted on before quitting the EU.

He also attempted to rubbish arguments that a withdrawal would damage the Good Friday Agreement by stressing the Government remains committed to the peace process.

Stormont’s chief law officer, Attorney General John Larkin QC, also took an opposing stance to the MLAs involved in the litigation.

Looking to a post-Brexit future, he argued that “not one word or phrase in the Belfast Agreement” would be affected.

Mr Larkin also pointed to the examples of the Isle of Man, Jersey and Guernsey - none of whom are in the UK or EU - to back his case that the peace treaty can still work once the UK leaves.

Other grounds of challenge have been stayed due to their overlap with the proceedings at the High Court in London.

As the hearing in Belfast ended, Mr Justice Maguire said: “I will be giving my immediate consideration to the case.

“What I suspect is going to happen is that at some stage the court will reconvene to discuss the situation vis a vis the stay issues.”

Outside court Mr McCord expressed delight with how the case had gone.

“I’m a lot more optimistic after listening to the legal arguments,” he said.

“It’s the wish of the people of Northern Ireland that we remain in the EU, something which most of the political parties in the Assembly, with the exception of the DUP, have recognised.

“Surely democracy must count for something in this country.”

Mr McCord added: “Justice will be better served for victims by being in Europe.

“Europe has helped victims and the country as a whole to come together; I believe that would be lost with an exit because the British Government won’t support us the same way.”

How the case unfolded:

Day one: Taxpayer-funded lawyer urges court to halt Brexit

Day two: Brexit ship has sailed, government QC tells Article 50 court challenge