Belfast Telegraph

Court upholds ruling on Raymond McCord Brexit legal challenge

Raymond McCord at a previous court hearing (Liam McBurney/PA)
Raymond McCord at a previous court hearing (Liam McBurney/PA)

By Alan Erwin

Any Brexit negotiations by Prime Minister Boris Johnson's administration must remain outside judicial scrutiny, the Court of Appeal has ruled.

Senior judges in Belfast upheld a finding that legal challenges to the United Kingdom leaving the European Union without an agreement are non-justiciable.

The cases brought amid claims a no-deal exit would breach the Good Friday Agreement and threaten the Northern Ireland peace process could now go to the Supreme Court in London.

Victims campaigner Raymond McCord and two other applicants were attempting to overturn the High Court's dismissal of his legal bid to block any departure from Europe on those terms by the October 31 deadline.

But dismissing their appeals, Lord Chief Justice Sir Declan Morgan held: "The exercise of the prerogative power in the negotiations with the EU 27 is within the scope of the prerogative and is not justiciable."

Appeal judges were examining legal points around the British Government's Brexit strategy specific to Northern Ireland.

Mr McCord, whose son Raymond Jr was murdered by loyalist paramilitaries in 1997, contends that leaving without a deal will lead to chaos, economic misery and imperil relative peace in the region.

His lawyers argued that a no-deal Brexit would unlawfully undermine Northern Ireland's constitutional position and inflict clear damage on north-south relations.

According to their case such a scenario breaches the European Union (Withdrawal) Act which protects the 1998 Belfast Agreement.

Counsel for one of the other applicants also contended that it would "light a fuse to a stick of dynamite" under the Good Friday accord and unlawfully create a hard border on the island of Ireland.

However, the Prime Minister's legal team insisted Brexit laws impose no obligation on the UK to negotiate an exit deal.

Instead, they maintained, the departure process became inexorable once notification was given.

Sir Declan, who heard the appeal with Lord Justices Stephens and Treacy, acknowledged the applicants' submissions "demonstrate that a UK withdrawal from the EU without an agreement would give rise to the very considerable risk of deterioration in the security situation in Northern Ireland, an adverse impact on the Northern Ireland economy and a severe limitation on the work of the implementation bodies operating with the support of the North-South Ministerial Council".

But he emphasised: "It is not our task, however, to evaluate the merits of a UK withdrawal from the EU without an agreement."

Instead, the judge said, the case centred on whether the Withdrawal Act imposes a constraint on those negotiating with the EU 27 to proceed on the basis that the UK can only leave the Union if an agreement is reached so that the Good Friday arrangements for an all-island economy continue unimpeded by any hard border.

Backing the High Court decision, appeal judges held that the government is exercising prerogative powers in its negotiations with the EU 27.

"Ministers are, of course, subject to questioning in parliament about the negotiations and secondary legislation facilitating withdrawal is subject to scrutiny," Sir Declan said.

"Parliament will have the opportunity to vote on the outcome of the negotiations."

He further concluded that the European Union (Withdrawal) Act does not constrain that exercise of that prerogative power.

"It is not appropriate for this court to examine the possible outcome of the negotiation on the basis of political rhetoric, and in any event parliament has made provision for any such outcome in the Withdrawal Act and the Withdrawal (No 2) Act 2019," the judge said.

Following the ruling lawyers for the appellants sought permission to take their case to the Supreme Court.

Although leave was refused, they can now petition directly for a hearing in London.

Sir Declan confirmed he would indicate it was a "matter of urgency"  so that Supreme Court justices can decide whether they want to examine the cases before the October 31 Brexit deadline.

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