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Claim Brexit can't be triggered without consent of Northern Ireland public a fantasy, court hears

By Alan Erwin

Published 16/11/2016

Raymond McCourt revealed he applied for an Irish passport following the Brexit result. Picture by Jonathan Porter/Press Eye
Raymond McCourt revealed he applied for an Irish passport following the Brexit result. Picture by Jonathan Porter/Press Eye

A victim campaigner's claim that Brexit cannot be triggered without the consent of the Northern Ireland public is a "fantasy argument", the Court of Appeal has heard.

Attorney General John Larkin QC insisted one of the grounds of challenge advanced by Raymond McCord should not go before the Supreme Court.

Mr McCord is seeking to join a cross-party group of MLAs in having failed legal challenges to the UK's departure from the European Union referred directly to justices sitting in London.

Both actions involved claims that the British Government cannot use royal prerogative powers to begin EU withdrawal without an Act of Parliament.

But Mr McCord, whose son was murdered by loyalist paramilitaries, further contended that the 1998 Good Friday Agreement means Northern Ireland's constitutional status cannot change without the agreement of its people.

As his lawyers began attempts to have all matters of devolution in his case referred to the Supreme Court, the Attorney General submitted that the issue on requiring public consent has already been dismissed as unsustainable

He told appeal judges sitting in Belfast: "It's a fantasy argument, and ought not to take up the time of this court and far less the Supreme Court."

Mr Larkin has already taken the unprecedented step of issuing a notice that four devolution points raised in the Stormont politicians' case are worthy of further judicial consideration.

His move is expected to result in their challenge being referred directly to the Supreme Court.

And he accepted that the same four grounds also featured contained in Mr McCord's action.

Adjourning the hearing, Lord Chief Justice Sir Declan Morgan asked counsel for the campaigner to redraft points raising a possible notice of devolution.

If the case is permitted to  "leapfrog" the Court of Appeal and go directly to the Supreme it could join up with the Government's challenge to a ruling by the High Court in London that only Parliament can trigger Brexit.

That hearing is set to get underway early next month.

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.

Last month a High Court judge in Belfast rejected separate challenges by Mr McCord and the MLAs.

During the original three day hearing 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 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, including Alliance MLA David Ford, SDLP leader Colum Eastwood, Sinn Fein Assemblyman John O'Dowd and Steven Agnew of the Green Party, 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.

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