Brexit, Strand 1: Re McCord [2016] NIQB 85

The first strand of the Brexit litigation has now produced a reasoned judgment, the Northern Irish High Court (Maguire J.) handing the government a resounding win: Re McCord [2016] NIQB 85.

The issues raised here were mostly distinct Northern Irish issues, but it should be noted that if the English courts were to follow Maguire J.’s approach, the government’s chances of success would be significantly greater.

The particular issues raised by the applicants related to the constitutional status of Northern Ireland. First, that the prerogative to enter into and withdraw from treaties has been qualified by the Good Friday Agreement and the legislation (Northern Ireland Act 1998) designed to give effect to it, such that further legislation would be required to ‘trigger’ Article 50 — one applicant developed this point and argued that the Northern Ireland Act 1998 memorialised the “principle of consent”, such that any significant changes to Northern Ireland’s constitutional framework would require the consent of the people of Northern Ireland. Secondly (and consequently), that any such legislation would have to be preceded by a legislative consent motion granted by the Northern Ireland Assembly. Thirdly, that the use of prerogative powers in this case would be inappropriate. Finally, that triggering Article 50 has equality implications within the terms of s. 75 of the Northern Ireland Act 1998 (a point that I will not address in any detail).

Maguire J. reviewed the terms of the Good Friday Agreement, its three “strands”, and the legislative and administrative arrangements designed to implement it (at paras. 25-64).

On the first point — whether the prerogative has been qualified by the Northern Ireland Act 1998 — Maguire J. adopted the following analytical approach:

The fact that there is no express language found in the statute specifically limiting the operation of the prerogative will be highly relevant, as an obvious way of setting aside or limiting prerogative power would be for the statute concerned to expressly say so.  It also seems to the court that there is support in the authorities for the view that, absent express provision being made, abridgment of the prerogative by a statute or statutory scheme must arise by necessary implication (at para. 83).

It is worth briefly considering the implications of this approach for the English litigation. There, the starting point of the claimants is that rights that are currently exercisable in domestic law would inevitably  be eliminated by the triggering of Article 50. But because the prerogative cannot be used to eliminate rights, it cannot be used to trigger Article 50; only Parliament can eliminate extant rights. By contrast, the position of the government is that the prerogative is exercisable unless ousted expressly or by necessary implication by statute. On balance, if the government’s starting point is adopted, it would be harder (though not necessarily impossible) for a court to find in favour of the claimants, because the claimants would need to demonstrate that s. 2 of the European Communities Act 1972 ousted the prerogative expressly or by necessary implication. It is interesting to note that Maguire J.’s starting point is the government’s starting point.

From this starting point, Maguire J. concluded that nothing in the Northern Ireland Act 1998 qualified the government’s prerogative powers:

On the day after the notice has been given, the law will in fact be the same as it was 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 United Kingdom 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 the law in the United Kingdom.

In this connection, the court has difficulty in affording such provisions any role concerned with displacing prerogative power for the purpose here at issue.  What the various provisions here at issue are concerned with is not the limitation of prerogative powers but the operation of the new institutions in circumstances where an on-going reality of life, in accordance with the then existing law, was membership of the EU.  The devolved institutions, to a greater or lesser extent, within the area transferred to them will be administering EU provisions and considering the future development of EU law in relevant subject areas.  The same will be true of North/South and East/West institutions and implementation bodies, again all within the limits of their respective jurisdictions.  It would be strange if it were otherwise…it is a different matter to portray the position as being one in which it is accurate to say that a cornerstone of the new institutions, without which the various edifices would crumble, is continued membership of the EU.  The devolved institutions and the various North/South and East/West bodies do not as their raison d’etre critically focus on EU law.  Their concerns and functions are much wider than this.  This is not to say that the United Kingdom leaving the EU will not have effects at all but it is to say at the least it is an over‑statement to suggest, as the applicants do, that a constitutional bulwark, central to the 1998 Act arrangements, would be breached by notification.  This would be to elevate this issue over and beyond its true contextual position.

It is therefore, in the court’s opinion, 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).  This simply will not happen by reason of the step of notification per se.  The reality is, at this time, it remains to be seen what actual effect the process of change subsequent to notification will produce.  In the meantime, sections 6 and 24 of the 1998 Act will continue to apply; the North/South and East/West institutions will continue to operate; and the work of implementation bodies will go on.  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 discussion about, for example, how Northern Ireland’s land boundary with Ireland will be affected by actual withdrawal by the United Kingdom from the EU (at paras. 105-107, emphasis added).

Though in the quoted passage Maguire J. is somewhat equivocal on this point, the suggestion that the Article 50 notification will not effect legal changes per se is quite interesting (and would support the government’s case in the English litigation).

On the related ‘principle of consent’ point, Maguire J. was forthright:

The court is 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 for and which establishes a norm that any change to the constitutional arrangements for the government of Northern Ireland and, in particular, withdrawal by the United Kingdom from the EU, can only be effected with the consent of the people of Northern Ireland.  Nor can the court identify material which would cause it to imply any such limitation…It further seems to the court that in this area it is 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 United Kingdom Parliament has retained to itself the ability to legislate for Northern Ireland (see section 5(6)) without the need to resort to any special procedure… (at paras. 152, 154).

There was no reason here for Diceyan “constitutional orthodoxy” to be set aside (at para. 156).

Assuming, however, that the applicants were right about the need for legislation, an Act of Parliament would not require the granting of a legislative consent motion as a matter of constitutional convention. Relations with Europe is a matter that remains within the hands of the Westminster Parliament: “the better view is that any legislation for the purpose of notification under Article 50(2) would be legislation relating to an excepted matter i.e 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” (at para. 121).

Question, though, the extent to which this statement is compatible with the analysis at para. 106, where Maguire J. said: ” The devolved institutions, to a greater or lesser extent, within the area transferred to them will be administering EU provisions and considering the future development of EU law in relevant subject areas” (emphasis added). It is unclear the extent to which areas such as agriculture, currently dominated by EU law, will be regulated post-Brexit by the devolved institutions. But Maguire J. can at least be read as suggesting that it will fall to the Northern Irish institutions to “administer[] EU provisions”, which raises the prospect that triggering Article 50 might indeed have an effect “with regards to devolved matters”. In any event (at para. 122), Maguire J. would not have given any legal effect to the convention, but he did note that the Scottish position might be different, due to the operation of the Scotland Act, 2016. No doubt representatives of the Scottish government will be paying close attention to Maguire J.’s conclusions on this point and might even join the litigation at some point.

Finally, Maguire J. rejected the claim that triggering Article 50 would be substantively unreasonable. A number of arguments were made, relating to matters such as Northern Ireland’s unique constitutional place in the United Kingdom, the need to assess alternative options and the giving of excessive weight to the referendum result (see para. 125). For Maguire J., it was “difficult to avoid the conclusion that a decision concerning notification under Article 50(2) made at the most senior level in United Kingdom politics, giving notice of withdrawal from the EU by the United Kingdom following a national referendum, is other than one of high policy.  Accordingly, it seems to fit well into the category of prerogative decisions which remain unsuitable for judicial review” (at para. 133). I would not take this to mean that such questions are inherently unreviewable — Maguire J. cited Youssef v Foreign Secretary [2016] 2 WLR 509, R (Sandiford) v Foreign Secretary [2014] 1 WLR 2697 and R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] 1 AC 453, all of which countenance review of even sensitive prerogatives in respect of foreign affairs — but that the applicants did not discharge the heavy burden of demonstrating that the government’s desire to proceed with triggering Article 50 would be unreasonable. Inviting a court to second-guess the weight the executive should give to factors relevant to the exercise of a discretionary power is rarely successful. Maguire J.’s conclusion is correct, though the language of “high policy”, is too strong inasmuch as it suggests that the substance of the Article 50 notification is inherently unreviewable.

This content has been updated on October 28, 2016 at 15:32.