'Treacherous shortcut' warning over bid to refer Brexit case to Supreme Court
A late bid by Northern Ireland's Attorney General to refer elements of a failed court challenge against Brexit directly to the Supreme Court could be a "treacherous shortcut", a Government lawyer has warned.
In an unprecedented move, Attorney General John Larkin has invoked a power to refer devolution issues argued in a case in Belfast to the UK's highest court.
The matters could be aired when the Supreme Court considers the Government's appeal against the decision by the High Court in England that prevented Prime Minister Theresa May triggering the Brexit process without parliamentary approval.
Two separate Northern Ireland-related challenges against the UK leaving the European Union were dismissed by a High Court judge in Belfast last month.
One was taken by victims campaigner Raymond McCord and the other by a cross-party group of Remain-supporting politicians.
A mainstay of the cases, which were heard together, was that Mrs May could not trigger Brexit without an Act of Parliament, with associated consultation by the Assembly.
Last month, Mr Justice Paul Maguire dismissed the joint landmark legal cases.
While Mr McCord and the politicians have the right to take their cases to the Northern Ireland Court of Appeal, both are asking Justice Maguire to refer them directly to the Supreme Court to enable an expeditious final ruling.
At the outset of a hearing in Belfast before the judge to discuss the "leapfrog" application, Mr Larkin informed the legal parties he intended to refer part of the politicians' case to the Supreme Court.
He said his powers as Stormont's chief law officer enabled him to refer devolved matters to the court.
Mr Larkin said he believed it was the "first such invocation" of the power in any of the devolved regions.
However, the Attorney General is only referring four of the five issues argued by the politicians' legal team to the Supreme Court and not referring McCord's case at all.
The judge will rule on the leapfrog application and he has expressed reservations whether the cases meet the criteria for doing so.
As Mr Larkin's direction does not require judicial approval, some issues in the challenges may go straight to the Supreme Court, while the remaining matters may not.
Government lawyer Dr Tony McGleenan expressed concern the course of action could see an unwanted split in the litigation.
He said the Government did not want to arrive at the Supreme Court with other matters outstanding in other courts.
"What appears to be a short cut could be a treacherous shortcut in terms of the overall resolution of the issues," he said.
Justice Maguire noted he had no power in respect of a direction by the Attorney General.
However, he said he wanted to be satisfied that the referral itself was lawful. He questioned whether such an order could be made once a judge had already ruled on a case and suggested such an intervention should have come when the case was still before the court.
He gave parties 24 hours to lodge further written applications on the matter.