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Northern Ireland MLAs' failed Brexit legal challenge referred to Supreme Court

By Alan Erwin

Published 17/11/2016

Last month a High Court judge in Belfast dismissed separate bids by the Stormont politicians and victims campaigner Raymond McCord to halt the United Kingdom's planned departure from the European Union.
Last month a High Court judge in Belfast dismissed separate bids by the Stormont politicians and victims campaigner Raymond McCord to halt the United Kingdom's planned departure from the European Union.

A cross-party group of MLAs' failed legal challenge to the Brexit process has been referred directly to the Supreme Court, it has emerged.

The order was confirmed following a direction issued by Attorney General John Larkin QC that four devolution issues require further judicial scrutiny.

Last month a High Court judge in Belfast dismissed separate bids by the Stormont politicians and victims' campaigner Raymond McCord to halt the United Kingdom's planned departure from the European Union.

Mr Justice Maguire rejected claims that the British Government cannot use royal prerogative powers to begin EU withdrawal without an Act of Parliament.

But earlier this month the High Court in London held that only Parliament can trigger Brexit.

With the Government set to challenge that ruling at the Supreme Court, lawyers in the Northern Ireland cases have been mapping out their own appeal routes.

In an unprecedented step, Mr Larkin used powers under the Northern Ireland Act 1998 dealing with devolution issues to announce his intention to advance one of the challenges.

His plan involves referring only the judicial review brought by politicians including Alliance MLA David Ford, SDLP leader Colum Eastwood, Sinn Fein Assemblyman John O'Dowd and Steven Agnew of the Green Party.

During a court hearing last week counsel for the Government claimed any move to split the two cases could ultimately prove to be a "treacherous shortcut".

Mr Justice Maguire, whose judgement dealt only with issues specific to Northern Ireland, adjourned proceedings at that stage for further written submissions.

But with Mr McCord now seeking authority from the Court of Appeal to go directly to London, it has been confirmed that the MLAs have already had the same step rubber-stamped.

Following the Attorney General's direction an order was drawn up on Monday setting out four devolution issues for consideration by the Supreme Court:

  • Do any provisions of the Northern Ireland Act 1998, read together with the Belfast Agreement and the British-Irish Agreement mean an Act of Parliament is required before Brexit can be triggered?
  • If they do, is the consent of the Northern Ireland Assembly required before the relevant Act of Parliament is passed?
  • If they don't, do any of the same provisions restrict royal prerogative powers to trigger Brexit?
  • Does section 75 of the Northern Ireland Act 1998 prevent the prerogative power being exercised in the absence of compliance by the Northern Ireland Office with its equality obligations under that section?

It is now expected that Supreme Court justices will consider the issues next month along with the Government's challenge to the verdict reached by the High Court in London.

Meanwhile, Mr McCord, whose son was murder by loyalist paramilitaries, is pressing ahead with attempts to "leapfrog" the Court of Appeal and go directly to London as well.

Prime Minister Theresa May is set to trigger Article 50 of the Lisbon Treaty, the formal process for confirming the UK is to leave, by the end of March 2017.

Even though the June 23 referendum backed Brexit, a 56% majority of voters in Northern Ireland wanted to remain.

During the original three day hearing in Belfast it was contended that the move is illegal without first securing Parliamentary authorisation.

But the judge identified no limits to the use of prerogative power for announcing intentions to quit the EU.

Mr McCord claimed they have a legal right to resist being forced out.

His lawyers argued that the 1998 Good Friday Agreement has given the Northern Irish public sole sovereignty to decide on their future.

They also predicted Brexit would have a "catastrophic effect" on the peace process, causing constitutional upheaval amid renewed calls for a united Ireland.

The MLAs also sought to judicially review the British Government's move towards quitting the EU.

In a case backed by representatives of the voluntary and community sector in Northern Ireland, they insisted an Act of Parliament is required before Brexit can take place.

They further contended that the Stormont Assembly should be consulted and asked for its consent.

Online Editors

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