Belfast court dismisses Brexit challenge
30 October 2016
McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) – read judgment
A challenge to the legality of the UK’s departure proceedings from the EU has been rejected by the High Court in Northern Ireland. In a judgment which will be of considerable interest to the government defending a similar challenge in England, Maguire J concluded that the UK government does not require parliamentary approval to trigger Article 50 of the Lisbon treaty. This is, par excellence, an area for the exercise of the government’s treaty making powers under the Royal Prerogative.
See our previous post on Article 50 and a summary of the arguments in the English proceedings.
This ruling was made in response to two separate challenges. One was brought by a group of politicians, including members of the Northern Ireland assembly, the other by Raymond McCord, a civil rights campaigner whose son was murdered by loyalist paramilitaries in 1997. They argued that the 1997 peace deal (“the Good Friday Agreement”) gave Northern Ireland sovereignty over its constitutional future and therefore a veto over leaving the EU. Like the English challengers, they also argued that Article 50 could only be invoked after a vote in Parliament.
At centre stage in the English case is the means by which Article 50 TEU is to be triggered and the question of the displacement of prerogative executive power by statute. While this issue was also raised in the challenge before the Northern Ireland court, Maguire J also had before him a range of specifically Northern Irish constitutional provisions which were said to have a similar impact on the means of triggering Article 50. To avoid duplication of the central issues which the English court will deal with, this judgment concerned itself with the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.
However, the judge had some clear views on the role of prerogative powers in the Brexit procedure, which, whilst respecting the outcome of the English proceedings, he did not hesitate to set out.
The arguments
The applicants claimed that the government’s prerogative powers to enter into and withdraw from treaties had been qualified by the Good Friday Agreement and the statute that gave effect to this peace deal, the Northern Ireland Act 1998. There were also a range of constitutional arguments before the court that the judge summarised thus:
the operation of EU law should be viewed as a building block of Northern Ireland’s constitutional protections and continued membership is a necessary element of the North-South and East-West structures and the relationships which form the kernel of the constitutional arrangements for Northern Ireland in modern times.
The applicants contended that further legislation would be required to trigger Article 50. Since any significant changes to Northern Ireland’s constitutional framework would require the consent of the people of Northern Ireland, the applicants argued that any such change would have to be preceded by a legislative consent motion granted by the Northern Ireland Assembly. Furthermore, they contended, rights that are exercisable in domestic law would be eliminated by the triggering of Article 50, and since prerogative powers cannot be used to eliminate rights, the decision to trigger Article 50 cannot be taken under the prerogative.
The Court dismissed the application in respect of all the issues raised.
Reasoning behind the Court’s decision
After an extensive review of the case law on prerogative powers, Maguire J concluded that the test for whether statute affected the prerogative could not be reduced to a single bright line rule which governs every case.
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.
A necessary implication is not the same as a reasonable implication. A necessary implication is one which logically follows from the express provisions of the statute construed in their context. It distinguishes between two things:
- what it would have been reasonable for Parliament to have included, or what Parliament would, if it had thought about it, probably have included and
- what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.
There was nothing in the Northern Ireland Act 1998 which so qualified the government’s prerogative powers. The judge quoted with approval the Northern Ireland government’s formulation of the issue; the actual notification does not in itself alter the law of the United Kingdom:
On the day after the notice [triggering Article 50] 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.
…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. [105-106]
The fact that the judge found that the triggering of Article 50 will not in itself affect the existing law is striking, and one that will no doubt be taken on board in the English proceedings.
Comment
This judgment delivers something of a body blow to the argument that the use of the prerogative power is inappropriate in the Brexit context. It was “difficult to avoid the conclusion”, said the judge,
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. [133]
Even though this central question had been stayed, pending the outcome of the English proceedings, it will not go unnoticed that the Northern Ireland court was not persuaded that “prerogative power has been chased from the field”;
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.
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It seems to me that this decision is reminiscent of that in the “support gay marriage” cake case.
The judges have approached the question on as narrow a base as they are able, and regardless of the absurdity of the result that flows.
The bakers have, in effect, been convicted of thought crime because they refused to act against their conscience…no mention of this by the court.
And the government is being given carte blanche on “Brexit” because it isn’t the Courts’ place to flag up the absurdity of the government’s position on the royal prerogative.
The Administrative Court appeared more receptive to the opposing arguments. We shall see.
“The Queen’s Majesty … is not, and ought not to be, subject to any foreign jurisdiction”.
Clause four of The Act of Succession confirmed the power of the sovereign, the role of parliament, the common law rights and liberties of the people, and the relationship between them. It said:
“IV. And whereas the Laws of England and the Birthright of the People thereof and all the Kings and Queens who shall ascend the Throne of this Realm ought to administer the Government of the same according to the said Laws and all their Officers and Ministers ought to serve them respectively according to the same The said Lords Spiritual and Temporal and Commons do therefore humbly pray That all the Laws and Statutes of this Realm for securing the established Religion and Rights and Liberties of the People thereof and all other Laws and Statutes of the same now in Force may be ratified and confirmed. And the same are by His Majesty by and with the Advice and Consent of the said Lords Spiritual and Temporal and Commons and by Authority of the same ratified and confirmed accordingly.”
The Act of Supremacy 1559 went even further. It included the words:
“…all usurped and foreign power and authority…may forever be clearly extinguished, and never used or obeyed in this realm. …no foreign prince, person, prelate, state, or potentate…shall at any time after the last day of this session of Parliament, use, enjoy or exercise any manner of power, jurisdiction, superiority, authority, preeminence or privilege…within this realm, but that henceforth the same shall be clearly abolished out of this realm, for ever.”
The people of the United Kingdom of Great Britain and Northern Ireland have shown-without doubt- they want out of the EU.The majority in that REFERENDUM was “To Leave” the EU”. The contributions the people make towards their Taxes etc are for the United Kingdom of Great Britain and Northern Ireland-not towards the EU. Our very own Common Law Constitution FORBIDS us obeying and contributing towards any other Country or Organisation. “The Queen’s Majesty … is not, and ought not to be, subject to any foreign jurisdiction”.
Clause four of The Act of Succession confirmed the power of the sovereign, the role of parliament, the common law rights and liberties of the people, and the relationship between them. It said: “IV. And whereas the Laws of England and the Birthright of the People thereof and all the Kings and Queens who shall ascend the Throne of this Realm ought to administer the Government of the same according to the said Laws and all their Officers and Ministers ought to serve them respectively according to the same The said Lords Spiritual and Temporal and Commons do therefore humbly pray That all the Laws and Statutes of this Realm for securing the established Religion and Rights and Liberties of the People thereof and all other Laws and Statutes of the same now in Force may be ratified and confirmed. And the same are by His Majesty by and with the Advice and Consent of the said Lords Spiritual and Temporal and Commons and by Authority of the same ratified and confirmed accordingly.”
The Act of Supremacy 1559 went even further. It included the words:
“…all usurped and foreign power and authority…may forever be clearly extinguished, and never used or obeyed in this realm. …no foreign prince, person, prelate, state, or potentate…shall at any time after the last day of this session of Parliament, use, enjoy or exercise any manner of power, jurisdiction, superiority, authority, preeminence or privilege…within this realm, but that henceforth the same shall be clearly abolished out of this realm, for ever.” That was why we went to WAR in 1939. What if we in 1939 hadand allowed Hitler to Govern us? How do we know what kind of person may be in charge in the future?
Reblogged this on World4Justice : NOW! Lobby Forum..
This is a problematic decision and argument at all levels in my mind. To invoke a medieval source of power to effectuate such an important change in UK’s constitution sounds rather bizarre I dare to suggest in the light of the modern approach to the “source” of power. See for example House of Commons Public Administration Select Committee’s 2003/4 Report Taming Royal Prerogative demanding that a list of “Royal Prerogatives” should be drawn up to avoid potential abuse of power (http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf ). Or the House of Lords Constitutional Committee’s conclusion, even in the context of deploying armed forces that “the exercise of the Royal Prerogative by the Government to deploy armed forces overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy”. (para. 103; http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23607.htm ) If a deployment of armed forces is perceived as “outdated” and unacceptable in the 21st century it is difficult to see how the Royal Prerogative could legitimately be used for taking away fundamental EU rights, benefits and other entitlements.
Secondly, the Royal Prerogative has never been an “amorphous pool which could be used for purposes convenient to the government” (C. Vincenzi, ‘Extra-statutory Ministerial Discretion in Immigration Law’, 1992, Public Law Summer, 300) but referred to specific areas of prerogative powers. But most importantly, the Royal Prerogative today is residuary in character because statute supplants prerogative; it is subject to law in other words. See for example The Zamora [1916] 2 AC 77, PC: “the Crown has no reserve of discretion to operate outside the limits of legality” meaning essentially that the discretion is subject to judicial review.
According to Lord Steyn “while Parliamentary sovereignty may well continue to be “the general principle of our constitution…unchecked executive power does not hold such sway” (Lord Steyn, ‘The weakest and least dangerous department of government’ [1997] PL 84, 87.)
A missed opportunity!