McCord, Re Judicial Review  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.
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 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.
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. 
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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