Brexit - another legal challenge

High Court Belfast

The Irish Times 11th August - Belfast rights campaigner begins legal challenge to Brexit

"A campaigner for the rights of victims of the Troubles has launched the first legal challenge in Northern Ireland to the UK leaving the European Union.  Raymond McCord lodged papers at the High Court in Belfast on Thursday seeking a judicial review of the British government’s move towards Brexit.  His lawyers claim it would be unlawful to trigger Article 50 ... without parliament voting on the move. They also contend it would undermine the UK’s domestic and international treaty obligations under the Good Friday Agreement, and inflict damage on the Northern Ireland peace process."

Similar action has been commenced in England and is set for a hearing in October - Law and Lawyers 19th July.

Northern Ireland is a separate legal jurisdiction to those in the remainder of the United Kingdom.  It has its own court structure comprising Court of Appeal; High Court and Crown Court and other courts.  The modern structure dates from the Judicature (Northern Ireland) Act 1978.   Appeal lies to the Supreme Court of the United Kingdom on points of law.  Northern Ireland also has its own legal profession - see Bar of Northern Ireland - Law Society Northern Ireland.

The United Kingdom Parliament is the ultimate law-making authority for Northern Ireland but, under devolution arrangements, there is a Northern Ireland Assembly  and a Northern Ireland Executive (established on a power-sharing basis) - see Constitutional Ramblings - The United Kingdom of Great Britain and Northern Ireland.   The present day Northern Irish institutions developed after the highly important Belfast Agreement of 10th April 1998 (the "Good Friday" agreement).

The Good Friday Agreement is a Treaty between the United Kingdom and the Republic of Ireland.  It has been instrumental in bringing about greater peace and prosperity for Northern Ireland than was enjoyed during many years of terrible internal conflict - ("The Troubles").

The European Union Referendum of 23rd June 2016 resulted in the people of Northern Ireland wishing to remain in the EU.  The Republic of Ireland is also in the EU.  It follows that the land border between Northern Ireland and the Republic could well become a major issue in the event that Northern Ireland were to be taken out of the EU.  It would be the first time that the UK has a land border with the EU.

Regular readers of this blog will know my view (for what it is worth) that the referendum outcome does not, in itself, amount to a "decision" to leave the EU - (Post of 27th June).  It is a view supported by a considerable number of eminent lawyers.  Whether it will be supported by the courts remains to be seen.  For the purposes of Article 50,  a decision must be taken in accordance with the UK's constitutional requirements.  The problem is to know what those requirements actually are!  Some argue that Ministers may issue the notice under Article 50 using royal prerogative powers relating to treaties.  Others argue that there isn't a decision unless Parliament says so.  Both sides are supported by highly respected legal opinion.

The Belfast Agreement and the Northern Ireland Act 1998 placed considerable emphasis on human rights within Northern Ireland.  This is entirely to be expected given the recent history of Northern Ireland, particularly since the 1960s.   The European Convention on Human Rights is the creation of the Council of Europe and not the EU.  The Good Friday agreement was particularly strong in terms of requiring equal opportunity in relation to religion; political opinion; gender; race; disability; age; marital status; dependants and sexual orientation.  Given this, there are rights derived from EU law which could assume considerable importance in Northern Ireland.  On this, see this view from the Northern Ireland Human Rights Commission.

It is true that, as a matter of law, the European Communities Act 1972 and the Human Rights Act 1998 remain fully under the control of the UK Parliament - see Northern Ireland Act 1998.  Nevertheless, altering either will have serious repercussions in Northern Ireland and this makes it politically imperative that the UK Parliament - (no doubt taking into account the view of the Northern Ireland Assembly) - makes any decision to leave the EU or to alter human rights arrangements.

The interesting question is whether the law requires this.  The legal actions in London and Belfast will hopefully answer that question.  We shall see!