About this case:

• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Sir Declan Morgan

Stating that it was not the Court’s task to evaluate the merits of a UK withdrawal from the EU without a deal, the Lord Chief Justice, Sir Declan Morgan, said the UK Government is exercising prerogative powers in its negotiations with the EU 27 and that this is not justiciable.

Background

In the Court of Appeal, Raymond McCord, Jamie Waring and an anonymised applicant, JR83, (hereafter “the appellants”) appealed against the decision of Lord Justice Bernard McCloskey to dismiss their applications for judicial review.

Finding that the subject matter of the applications was “inherently and unmistakeably political”, Lord Justice McCloskey dismissed parts of the applications for judicial review of decisions of the Prime Minister and the Secretary of State for Exiting the EU which relied on Section 10 of the European Union (Withdrawal) Act 2018, and refused applications for leave to apply for judicial review of those decisions on all other grounds.

The decisions under challenge were those which have led the UK Government to conduct negotiations with the EU 27 proposing measures which the appellants suggest do not protect the Good Friday Agreement (GFA) and/or which are not compatible with the Northern Ireland Act 1998. The appellants submitted that “the prerogative power of the Executive to conduct negotiations has been curtailed or abrogated either expressly or by necessary implication by the [European Union (Withdrawal) Act 2018] so that those negotiations are justiciable and subject to the supervisory jurisdiction of the courts”.

The Joint Report

Delivering the judgment of the Court, the Lord Chief Justice made particular reference to a section of the Joint Report of the negotiations between the UK Government and the EU (dated 8 December 2017) dealing with “Ireland and Northern Ireland”. This stated that both parties agreed that the GFA must be protected in all its parts, and recognised the need to respect the provisions of the GFA regarding the constitutional status of Northern Ireland and the principle of consent.

The Joint Report stated that the UK Government remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border, and that any future arrangements must be compatible with these overarching requirements. In the absence of agreed solutions, the UK said it would ensure that no new regulatory barriers would develop between NI and the rest of the UK, unless, consistent with the GFA, the NI Executive and Assembly agree that distinct arrangements are appropriate for NI.

Section 10 of the European Union (Withdrawal) Act 2018

The heading of Section 10 is “Continuation of North-South Co-operation and the prevention of new border arrangements”

Section 10(1) provides that, in exercising any of the powers, a Minister of the Crown or devolved authority must act in a way that is compatible with the terms of the Northern Ireland Act 1998 and have due regard to the Joint Report.

Section 10(2) provides that nothing in section 8, 9 or 23(1) or (6) of the European Union (Withdrawal) Act 2018 authorises regulations which diminish any form of North-South co-operation provided for by the Northern Ireland Act 1998 or create or facilitate border arrangements between NI and the Republic of Ireland after exit day which feature physical infrastructure, including concluded border posts or checks and controls that did not exist before exit day and are not in accordance with an agreement between the UK and the EU.

Court of Appeal

The appellants submitted that a UK withdrawal from the EU without an agreement would give rise to the very considerable risk of a deterioration in the security situation in Northern Ireland, an adverse impact on the NI economy and a severe limitation on the work of the implementation bodies operating with the support of the North-South Ministerial Council.

The Lord Chief Justice said it was not the Court’s task to evaluate the merits of a UK withdrawal from the EU without an agreement, and that the case before it was whether the European Union (Withdrawal) Act 2018 imposes a constraint on those negotiating with the EU 27 to proceed on the basis that the UK can only leave the EU if an agreement is reached so that the operation of the GFA continues undisturbed and the existing arrangements for the all-island economy continue unimpeded by any hard border.

The Court reached the following principal conclusions:

• The Executive is exercising prerogative powers in its negotiations with the EU 27 in respect of the UK’s withdrawal from the European Treaties. Ministers are, of course, subject to questioning in Parliament about the negotiations and secondary legislation facilitating withdrawal is subject to scrutiny. Parliament will have the opportunity to vote on the outcome of the negotiations.
• Section 10 of the European Union (Withdrawal) Act 2018 does not expressly or by necessary implication abrogate or constrain that exercise of that prerogative power.
• It is not the purpose of section 10 of the European Union (Withdrawal) Act 2018 to constrain the exercise of the prerogative power in the said negotiations so there is no frustration of the will of Parliament.
• Subject to the Court’s remarks about Section 17, the exercise of the prerogative power in the negotiations with the EU 27 is within the scope of the prerogative and is not justiciable.
• It is not appropriate for the Court to examine the possible outcome of the negotiation on the basis of political rhetoric and in any event Parliament has made provision for any such outcome in the Withdrawal Act and the Withdrawal (No 2) Act 2019.

The Court dismissed the part of the appeal in relation to Section 10 of the European Union (Withdrawal) Act 2018, and upheld Lord Justice McCloskey’s decision to refuse leave to apply for judicial review in relation to all other grounds.

• by Róise Connolly for Irish Legal News