McCord (Raymond), JR83 and Jamie Waring's Applications v The Prime Minister and others
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 12 September 2019 |
| Neutral Citation | [2019] NIQB 78 |
| Court | Queen's Bench Division (Northern Ireland) |
| Docket Number | Ref: McC11052 |
| Date | 12 September 2019 |
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)
McCloskey LJ
Ref: McC11052
INDEX
| SUBJECT | PARAGRAPH No |
| Introduction | 1 – 4 |
| The Three Challenges | 5 – 16 |
| The TEU | 17 – 19 |
| The Decision in Wightman | 20 – 21 |
| The Decision in Miller | 22 |
| The EU (Notification of Withdrawal) Act 2017 | 23 |
| The EU (Withdrawal) Act 2018 | 24 – 27 |
| Legislative Activity In 2019 | 28 |
| The EU (Withdrawal) (No2) Act 2019 | 29 – 30 |
| 31 – 35 | |
| The “Joint Report” | 36 – 42 |
| House of Lords Hansard | 43 |
| Evidential Underpinning | 44 – 48 |
| Some Governing Principles | 49 – 54 |
| Article 50 TEU Analysed | 55 – 57 |
| The Section 10 Challenge | 58 – 86 |
| Misuse of Prerogative Powers | 87 – 92 |
| The “Operation Yellowhammer” Ground | 93 – 96 |
| The RCHR Grounds | 97 – 104 |
| The Irrationality Ground | 105 – 107 |
| Justiciability | 108 – 117 |
| Omnibus Conclusion and Order | 118 |
| Costs | 119 |
Introduction
By these applications for leave to apply for judicial review Raymond McCord, Jamie Waring and JR83 (collectively “ the Applicants”) invite this court to intervene at this stage of the evolving, fluctuating and uncompleted Brexit saga. The three cases have been conjoined. They have received a high degree of expedition and have been processed in accordance with the so-called “rolled up” mechanism at a hearing conducted on the successive dates of 6, 9 and 10 September 2019.
The standing of the Applicants to bring these proceedings is not in dispute. The third of the Applicants has been allocated the cipher “ JR83”, the court having been satisfied that there were appropriate grounds for the grant of anonymity. As the challenges raise “devolution issues” under the scheme of the Northern Ireland Act 1998 the appropriate notice was given to the Attorney General for Northern Ireland, whose contribution consisted of a written submission and, with the permission of the court, time limited oral argument.
I draw attention to one particular feature of the case management of these proceedings. This court, having been alerted to the substance of the legal challenges in the Scottish case of Cherry and the English case of Miller, ruled that the discrete challenge (forming part of Mr McCord's case only) relating to the recent controversial Order in Council (“ the prorogation measure”) made on 28 August 2019 whereby Parliament is to be prorogued from a day no earlier than 09 September 2019 and no later than 12 September 2019 (and has now been prorogued), with effect from 10 September 2019 until 14 October 2019, would not be considered. This court so ruled given that the legality of the prorogation measure evidently forms the centrepiece of the legal challenges in the Scottish and English proceedings, these three cases raise several other distinctly Northern Irish issues and, finally, by reason of the acute need for expedition and finality some curtailment of the breadth of these challenges was essential on pragmatic grounds.
As will become apparent while there is, unsurprisingly, some degree of overlap one can identify certain issues of a distinctive character in each of the three cases. Notwithstanding the brief lifetime of these proceedings all parties energetically brought before the court further evidence as and when it materialised. This was a reflection of the parallel extra — proceedings fluctuations and developments in the “Brexit” saga, unfolding in the world of politics and international relations. In passing, as one would expect the justiciability of what the Applicants are seeking to challenge is an issue of some importance. In tandem with rapid developments externally the Applicants also amended their formal pleadings with some frequency. The High Court in this jurisdiction continues to operate a general (not inflexible) rule of practice whereby amendments of an applicant's pleading can be made without permission prior to the court's determination of whether to grant leave to apply for judicial review. In the compressed circumstances of these proceedings the court was disinclined to invest any time or resources in debates about the propriety of amendments and reception of further evidence. Taking into account also the public law character of these proceedings, in the event all of the evidence presented was admitted, while the challenges have proceeded on the basis of the ultimate incarnation of each Applicant's amended pleading.
The Three Challenges
Mr McCord in his challenge, identifies four proposed respondents: the Prime Minister, the Secretary of State for Northern Ireland, the Secretary of State for Exiting the European Union (the “Brexit Secretary”) and Her Majesty's Government. There is a convenient distillation of the contours of Mr McCord's challenge in the following passage in the skeleton argument of Mr Ronan Lavery QC (with Mr Conan Fegan of counsel):
“(1) He contends that the prorogation of Parliament proposed by the Prime Minister and made by way of Order in Council on 28th of August 2019 is unlawful and unconstitutional. The Order in Council is an abuse of the discretionary power available to the Prime Minister to prorogue parliament. The true motivation is to prevent Parliament having sufficient time to table and/or enact any legislation which would prevent the Prime Minister's policy of withdrawal from the European Union by 31 October 2019 in any circumstances including without a withdrawal agreement. 1
(2) The Applicant contends that it is unlawful for the Prime Minister to effect or attempt to effect a withdrawal from the European Union outside of the express terms, provisions and safeguards set out in the European Union (Withdrawal) Act 2018 (‘EUWA’). For the Prime Minister to do so either by way of act or omission is contrary to the express will or Parliament as set out in that legislation in particular with reference to sections 10 and 13.
(3) The Applicant contends that any act or omission purporting to effect a withdrawal from the European Union must be in accordance and consistent with the terms of The Good Friday
Agreement which, by virtue of the EUWA and its incorporation of The Good Friday Agreement into domestic law is binding upon the Executive in so far as the Executive purports or attempts to effect a withdrawal from the European Union. Those provisions of the Withdrawal Agreement must be read and given effect to in a way that is consistent with the letter, spirit, purpose, aims and objectives of The Good Friday Agreement. Through the EUWA Parliament has recognised that leaving the European Union without a deal and in such a way that would leave no option but to impede movement and trade between both parts of the island and the erection of border infrastructure and other regulatory inhibitions to free movement and trade would be contrary to The Good Friday Agreement. The Act does not authorise withdrawal from the European Union to occur without a deal being reached with the other 27 European Union Member States. Any act or omission on the part of the Prime Minister to effect withdrawal without a deal is ultra vires and unconstitutional.(4) The Applicant further contends that any decision by the Executive to effect a withdrawal from the European Union without a deal with the other 27 Member States (‘EU 27’) is on the fact of it irrational, fails to take into account material considerations and is oppressive to the citizens of Northern Ireland.
(5) The Applicant contends that the Courts are best place to adjudicate upon tension arises between the Executive and Parliament and upon the lawful and/or constitutional exercise of discretionary powers whether by virtue of Royal prerogative or on foot of powers expressed or implied in legislation. The Applicant contends that the subject matter of the exercise of discretion is of such constitutional importance, involve the deprivation of rights of citizens that it is justiciable and indeed is a textbook example of the rule of the Courts in safeguarding the role of Parliament and indeed its sovereignty but also to safeguard the constitutional and lawful rights of its citizens.
(6) The Applicant's position is that until a position can be reached whereby withdrawal from the European Union can be effected without jeopardising or breaching the terms of The Good Friday Agreement which have binding constitutional status in so far as they relate to Britain's exit from the European Union, the current position must be preserved, namely the United Kingdom's continued membership of the European Union. The Court is obliged to provide whatever remedy is appropriate in the fluid and fast-moving circumstances to preserve the Applicant's constitutional rights.”
(“EUWA” denotes the European Union (Withdrawal) Act 2018 — the “Withdrawal Act”).
One finds greater focus and definition in the Order 53 pleading in the following way, under the heading of “The Impugned Decision/Omission”:
(a) The Applicants' challenge:
“ …. concerns the constitutional and lawfulness of the United Kingdom's withdrawal and exit from the European Union without a withdrawal agreement made between the United Kingdom and the European Union pursuant to Article 50 (TEU)”
(b) “ The proposed Respondent's decision to no longer endorse paragraph 49 of the Joint Report from the Negotiators of the European Union and the United Kingdom of 20 December 2017 …., a central element of the withdrawal agreement which the EU has repeatedly said it will not reopen, has created a very high...
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