Simon Lee on the Belfast court’s justified dismissal of the first round of Brexit litigation.

In the Northern Ireland High Court on Friday, 28 October, Maguire J gave the first ruling on Brexit litigation. Maguire J rejected the applications of Raymond Cord and of various politicians and two organisations, the Committee on the Administration of Justice and the Human Rights Consortium. They claimed that ‘Article 50 could not be triggered by the use of prerogative power and that legislation (or other mandate from Parliament) was required for this purpose. In each case, the Government’s response was that Parliament’s express authorisation was not needed to commence the Article 50 process’ of withdrawal from the European Union.

In a careful judgment, Maguire J rejected the applications and broadly accepted the arguments of counsel for Her Majesty’s Government, the Secretary of State for Northern Ireland and the Secretary of State for Exiting the European Union, Tony McGleenan QC, and of the Attorney General for Northern Ireland, John Larkin QC, who entered an appearance following a devolution notice from the court.

The judge steered clear of the litigation underway in England & Wales, R (Miller) and others v Secretary of State for Exiting the European Union, in which judgment is awaited.

The predicted effects of withdrawal from the EU on the Good Friday Agreement and the Northern Ireland Act 1998 have been invoked in political debate on the wisdom of the Brexit vote, both before and after the 23 June referendum. As to whether any such claim should constrain an Article 50 notification, however, Maguire J concluded that,

‘In the present case, it seems to the court that there is a distinction to be drawn between what occurs upon the triggering of Article 50(2) and what may occur thereafter. As the Attorney General for Northern Ireland put it, the actual notification does not in itself alter the law of the United Kingdom. Rather, it is the beginning of a process which ultimately will probably lead to changes in United Kingdom law. On the day after the notice has been given, the law will in fact be the same as it was the day before it was given.’

So the judge considered that, ‘While the wind of change may be about to blow the precise direction in which it will blow cannot yet be determined’ and the court was ‘not persuaded’ that the ‘prerogative power has been chased from the field’. Indeed, the court could not find ‘any specific provision in the Good Friday Agreement or in the 1998 Act’ that ‘withdrawal by the United Kingdom from the EU, can only be effected with the consent of the people of Northern Ireland.’

Maguire J concluded with a statement of constitutional orthodoxy:

‘The court acknowledges that on the issue of the doctrine of parliamentary sovereignty (in the Diceyan sense that Parliament can make or unmake any law whatsoever and that no-one can override or set aside the legislation of Parliament) there are differing views about the extent to which the doctrine may be reconciled with, in particular, the rule of law, but this does not mean that a first level judge is free to disregard the doctrine or sweep it away.’

Indeed, a first level judge sitting alone is not as free as a panel of judges at the highest level to be creative in the development of the law. Maguire J is not only signalling his own judicial restraint at first instance but possibly indicating that a bolder approach might be adopted by the Court of Appeal or the Supreme Court. He neatly leaves open the possibility that he, like many a first instance judge, might develop a more adventurous approach if promoted to a higher court.

Will the first instance court in Miller be less restrained? On one point, at least, I would expect the court in London to be more confident, namely on the justiciability of such a matter. Although also sitting at first instance, the Divisional Court in London fielded three judges, the Lord Chief Justice of England & Wales, the Master of the Rolls and the former Treasury ‘Devil’, Lord Justice Sales. The strength and composition of this Court is a signal that a leapfrog appeal might take Miller straight to the Supreme Court.

Whether or not those judges agree in the result, I would expect them to differ from Maguire J in his rhetoric that the decision to trigger Article 50 ‘does not lend itself to the process of judicial review and remains an example of the sort of decision which properly should be viewed as non-justiciable.’ Maguire J makes the point that a broader critique by the applicants such as what weight to give to the referendum result ‘is a political judgment for the government of the day and that on grounds of lack of expertise the court has no standing in respect of it’ and indeed the court has little or no evidence on which to make various assessments requested by the applicants. Maguire J is right to say that, ‘it is difficult to avoid the conclusion that a decision concerning notification under article 50(2) made at the most senior level in United Kingdom politics, giving notice of withdrawal from the EU by the United Kingdom following a national referendum, is other than one of high policy’ but the idea that such matters of ‘high policy’ (quoting Taylor LJ in R v Foreign Secretary, ex p Everett, 1989 1 AER 656) are therefore not justiciable might well have been overtaken in London by the self-confidence of the higher judiciary. It depends what is meant by ‘non-justiciable’.

Whatever happens in London, it is encouraging to see Maguire J, who has served the common good as an Alliance politician and as an academic, now on the Bench in Belfast handling such a politically sensitive case with such aplomb. Nobody could plausibly doubt Sir Paul Maguire’s commitment to the Good Friday Agreement, to constitutionalism in Northern Ireland, to European ideals or to the rule of law. None of that means, however, that he thinks it right to intervene as a first level judge at this stage in this matter of high policy. Instead, he has set out constitutional orthodoxy with refreshing clarity and respect for the roles of politicians, judges and the wider voting public.

Simon Lee is Professor of Law and Director of Citizenship & Governance Research at The Open University and Emeritus Professor of Jurisprudence, Queen’s University Belfast.

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