Friday, 23 December 2016

Brexit litigation in the Supreme Court - Devolution (2) - Northern Ireland

In the European Union (EU) referendum held on 23rd June, the people of Northern Ireland voted (55.8% to 44.2% - turnout 62.7%) to remain in the EU and so it is not surprising to find strong feeling about the plans of the UK government to use prerogative power to give notice, under Article 50 Treaty on European Union, that the whole of the UK is to leave the EU.  If the UK government is successful then the notice could be given without formal reference to the devolved institutions of Northern Ireland.

High Court of Northern Ireland:

The first legal move came with the litigation in the High Court of Northern Ireland before Mr Justice Maguire - Re McCord's Application [2016] NIQB 85.  The court had two applications for judicial review: one by Mr Raymond McCord and the other by various applicants referred to as Agnew and others.  The judgment extends to 158 paragraphs.   Five principal issues were raised (para 9):


Issue 1 - prerogative power cannot be exercised for the purpose of notification in accordance with Article 50(2) TEU and the allied contention that this is 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. In these circumstances it is contended that an Act of Parliament is required to trigger Article 50(2), though in the case of McCord this argument is taken a step further, as appears hereafter.

Issue 2 - if an Act of Parliament is required, there has to be a Legislative Consent Motion

Issue 3 - there are a variety of public law restraints on any exercise of prerogative power in any event including the requirement to take all relevant considerations into account and not to give excessive weight to the referendum result.

Issue 4 - the Northern Ireland Office must comply, prior to notification being given under Article 50, with the terms of section 75 of the Northern Ireland Act 1998 and with the terms of its own equality scheme.

Issue 5 - McCord argued that Article 50 TEU cannot be triggered without the consent of the people of Northern Ireland. Moreover it is asserted that the Good Friday Agreement has created a substantive legitimate expectation that there would be no change in the constitutional status of Northern Ireland without the consent of the people of Northern Ireland.

Maguire J, quite properly, decided to concentrate on the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.  With the co-operation of the parties, the grounds of challenge being deal with Miller and Dos Santos were held over pending the outcome of the English litigation.

Court of Appeal: Northern Ireland:

The Court of Appeal in Northern Ireland referred to the Supreme Court this question:

"Does the triggering of Article 50 TEU by the exercise of the prerogative power without the consent of the people of Northern Ireland impede the operation of section 1 of the Northern Ireland Act 1998."

Attorney-General for Northern Ireland (AGNI):

The AGNI referred to the Supreme Court 4 questions:

1. Does any provision of the Northern Ireland Act 1998 read together with the Belfast Agreement and the British-Irish Agreement have the effect that an Act of Parliament is required before notice can be validly given to the European Council under Article 50 (2) TEU?

2. If the answer to question 1 is ‘yes’, is the consent of the Northern Ireland Assembly required before the relevant Act of Parliament is passed?

3. If the answer to question 1 is ‘no’, does any provision of the Northern Ireland Act 1998 read together with the Belfast Agreement and the British-Irish Agreement operate as a restriction on the exercise of the prerogative power to give notice to the European Council under Article 50 (2) TEU?

4. Does section 75 of the Northern Ireland Act 1998 prevent the prerogative power being exercised to give notice to the European Council under Article 50 (2) TEU in the absence of compliance by the Northern Ireland Office with its obligations under that section?

The AGNI witten case said that these were all questions about the constitutional law of the United Kingdom and no need arose for a reference to the Court of Justice of the EU.

Submissions to the Supreme Court:

Submissions were made by Mr David Scoffield QC (for the Agnew claimants) and Mr Ronan Lavery QC (for Raymond McCord).  Submissions dealing with devolution matters were presented on behalf of the government by the Advocate-General for Scotland and also by the AGNI.

Mr Scoffield QC - Agnew case - Day 3 transcript pages 112 to 133.  

Written material - Stephen Agnew, Colum Eastwood, David Ford, John O'Dowd, Dessie Donnelly, Dawn Purvis, Monica Wilson, The Committee on the Administration of Justice, The Human Rights Consortium

Mr Scoffield addressed the 4 issues, outlined above, dealt with by Maguire J.

Issue 1 - Act of Parliament - Three strands to this - (1) removal of rights grated by the Northern Ireland Act 1998 may not be achieved by prerogative action alone; (2) the significant alteration of the Northern Ireland devolution settlement may not be achieved by prerogative; (3) the giving of notice will frustrate the purpose and intention of the Northern Ireland Act in the context particularly of the north/south co-operation established under the Belfast and the British-Irish agreements.

Strand 1 - the Northern Ireland Act 1998 conferred rights under EU law on Northern Ireland citizens. Neither the legislative nor the executive branches of a Northern Ireland administration had power to act in any way contrary to EU law and EU law rights are relied on by individuals in Northern Ireland's courts. Mr Scoffield gave the example of JR65's application [2013] NIQB 101.  The government accepted that the Northern Ireland Act was "a further conduit" for the operation of EU law rights in the UK and also accepted that provisions in the Act will become otiose ("or beat the air") when the EU treaties no longer apply - (Transcript at pg. 115, 116).  Such rights cannot be lawfully defeated by prerogative.  The dualist approach to treaties was to protect the position of Parliament as against the executive and not to protect the executive against parliament.

Strand 2 - removal of EU law obligations will alter the legislative and executive competence of the devolved authorities in NI thereby materially altering "the carefully constructed devolution settlement" in at least two ways.  First by allowing the administration to do things which it is currently unable to do because of EU law restrictions and, secondly, some areas of responsibility will be removed from the devolution arrangements.  Such alteration of the devolution settlement cannot be achieved by prerogative (Page 117 to 120).  Furthermore, using the prerogative in the way proposed would sidestep the usual arrangements for amending the devolution scheme under section 4 of the Northern Ireland Act.  (Mr Scoffield referred to, and adopted, submissions by the Lord Advocate for Scotland and the Counsel General for Wales).

Strand 3 - an argument peculiar to Northern Ireland is that the Northern Ireland Act gives effect to the Belfast Agreement.  Mr Scoffield argued that continuing membership of the EU was an integral part of the scheme in the Act and prerogative could not be used inconsistently with that statutory purpose.  This important strand is developed at Transcript pages 120 to 130 and should be read in full.

Issue 2 - Legislative consent - this arises if the Supreme Court decides that an Act of Parliament is required prior to giving Art 50 notice.  Mr Scoffield again adopted submissions by Lord Advocate for Scotland and added that there was nothing heretical about saying that adherence to a constitutional convention could be a constitutional requirement (Page 131).  At this stage, the court was being asked to clarify whether and how the convention is engaged and there was an obligation on the executive to put Parliament in a position where it is informed on that issue (pg 132).

Mr Scoffield now ran out of his allocated time and offered to leave his "speaking note" with the court and other lawyers.  This was a pity because we, the public, do not get to see the reasoning he would have put forward relating to points 3 and 4 in the Maguire judgment.

Mr Ronan Lavery QC - for Raymond McCord - Day 3 transcript pages 133 to 143.

Written material - Raymond McCord. 

Mr Lavery argued that it would be unconstitutional to withdraw from the EU without the consent of the people of Northern Ireland.

Mr Lavery's submissions take us to the Constitution of Canada where a federal system applies between the various Provinces.  Mr Lavery also referred to the Quebec Secession case before the Supreme Court of Canada.   Could Québec make a unilateral declaration of independence (UDI)?  The Supreme Court declared unanimously that such a declaration would be unconstitutional both by Canadian constitutional law and international law. A constitutional amendment could, however, make such a secession possible. The Court added that Québec could hold a referendum of secession and, given a clear question and a clear majority in favour of secession, the rest of Canada, in such a case, would be constitutionally obliged to negotiate the terms by which Québec would accede to independence, and that such a secession must conform to important basic principles, namely, the rule of law, federalism, the protection of minorities and democracy.

Firstly, Mr Lavery said that being part of the EU was part of the constitutional settlement.  Secondly, there has been a transfer of sovereignty by virtue of the Good Friday Agreement (i.e. Belfast agreement), the Downing Street Declaration and the Northern Ireland Act 1998 section 1, so that in fact the people of Northern Ireland now have sovereignty over any kind of constitutional change, rather than Parliament.  The Northern Ireland Act had put Northern Ireland's place in the UK on a voluntary basis and to equate the devolution structure of Northern Ireland with those of Scotland and Wales does no justice to history, and does not do justice to the right of the people of Northern Ireland to self-determination as set out in the Anglo-Irish agreement, the Good Friday agreement and section 1 of the Northern Ireland Act.

Mr Lavery contended that the Good Friday agreement was a written part of the constitution of Northern Ireland and, contrary to the government's position, the part of it dealing with constitutional issues was a binding agreement.  It would be very disturbing for the people of Northern Ireland to imagine that the terms of the Good Friday agreement were not binding to some extent and that it did not have constitutional status (page 141).  In the Robinso case, the House of Lords referred to the fact that the Good Friday Agreement could be looked at in terms of interpreting section of the Northern Ireland Act (Transcript page 141).

Another point was that the Good Friday Agreement had replaced the earlier 1985 Anglo-Irish agreement which had been imposed on the people of Northern Ireland much to "unionist discontent."   If the will of the people in constitutional issues could be overridden against their wishes then similar arrangements to the 1985 Agreement might again be imposed.  [This, as I understand it, is what Mr Lavery was saying at transcript page 142 line 19 to page 143 line 1].

An interesting point was made by Lord Neuberger about section 1(2) of the Northern Ireland Act 1998 was that here was an example of a statutory provision which actually says will happen as a result of a referendum or, in this case, a poll.  See Lord Neuberger's remark at Transcript page 139.

My note: Mr Lavery's submissions certainly served to emphasize the immense sensitivity that will be involved in making change within Northern Ireland.  Whether his argument about transfer of sovereignty to the people of Northern Ireland will gain traction with the Supreme Court remains to be seen.  It depends on a wide reading of section 1 of the Act taking into account all the background material.




See also Devolution 1 and the subsequent posts at Devolution 3 and Devolution 4
 



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