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In August 2016, two applications for judicial review of the Government’s intention to use the Royal Prerogative to invoke Article 50 were lodged in the High Court in Belfast:

The first was lodged by Raymond McCord, and the second by multiple applicants - Steven Agnew MLA, Colum Eastwood MLA, David Ford MLA, John O’Dowd MLA, Dessie Donnelly, Dawn Purvis, Monica Wilson, the Committee on the Administration of Justice, and the Human Rights Consortium.

In both cases, the contention was that Article 50 could not be triggered by the use of the Royal Prerogative and that legislation (or other mandate from Parliament) was required for this purpose.

Both applications were made in light of the fact that in Northern Ireland, 55.8 per cent of the valid votes were in favour of remaining in the EU and 44.2 per cent were in favour of leaving.

Similar proceedings underway in England and Wales – R (Miller) and others v Secretary of State for Exiting the European Union – concern the means by which Article 50 is to be triggered and question the displacement of prerogative executive power by statute – in view of the overlap between the challenges, the Court stayed the consideration of the central issues which the English courts will deal with.

The proceedings before the High Court in Belfast therefore sought to concentrate on the impact of NI constitutional provisions in respect of notice under Article 50.

The grounds of judicial review

• The applicants contended that the prerogative power could not be exercised for the purpose of notification of intention to withdraw from the EU in accordance with Article 50(2) TEU because it has been displaced by the Northern Ireland Act 1998 read along with the Belfast Agreement and the British-Irish Agreement and other constitutional provisions.  The applicants contended that, in these circumstances, an Act of Parliament would be required to trigger Article 50(2).
• If an Act of Parliament is required, there is a requirement for a Legislative Consent Motion to be granted by the Northern Ireland Assembly before such legislation could be passed authorising notification in accordance with Article 50(2) TEU.
• There are a variety of public law restraints on any exercise of prerogative power in any event.  These include issues about the requirement to take all relevant considerations into account and not to give excessive weight to the referendum result.
• There has been a failure by the Northern Ireland Office to comply, prior to notification being given under Article 50 TEU, with the terms of section 75 of the Northern Ireland Act 1998 and with the terms of its own equality scheme.
• Mr McCord contended that Article 50 TEU could not be triggered without the consent of the people of NI and asserted that the Good Friday Agreement creates a substantive legitimate expectation that there would be no change in the constitutional status of NI without the consent of the people of NI.

Prerogative power

Considering issues 1 to 4, Justice Maguire said he was unable to identify any particular provision that expressly sought to limit or alter the prerogative power of the executive in the context of the notification under Article 50(2).

Drawing a distinction between what occurs upon the triggering of Article 50(2) and what may occur thereafter, Justice Maguire said it would be “an over-statement to suggest that a constitutional bulwark central to the 1998 arrangements would be breached by notification”, and that  “this would be to elevate this issue over and beyond its true contextual position”.

According to Justice Maguire, “it remains to be seen what actual effect the process of change subsequent to notification will produce. 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 discussions about, for example, how NI’s land boundary with Ireland will be affected by actual withdrawal by the UK from the EU”.

Justice Maguire concluded that, without prejudice to the issues stayed and under consideration in the English courts, it was 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).

Further, Justice Maguire stated that the prerogative power was still operative and could be used for the purpose of the executive giving notification for the purpose of Article 50.

Considering the fifth and final issue, Justice Maguire emphasised that while section 1 of the Northern Ireland Act 1998 deals with the question of the constitutional status of Northern Ireland, this was of no benefit here as it was clear that it (and the relevant portion of the Good Friday Agreement) considers the issue only in the particular context of whether Northern Ireland should remain as part of the United Kingdom or unite with Ireland.

Conclusion

Dismissing the applications in respect of all issues raised, the court indicated that in respect of Issues 1, 2, 3 and 4 it was prepared to grant leave but not in respect of Issue 5.

• by Róise Connolly for Irish Legal News