McCord (Raymond), JR 83 and Jamie Waring's Applications v The Prime Minister and others

JurisdictionNorthern Ireland
JudgeMorgan LCJ
Neutral Citation[2019] NICA 49
Date27 September 2019
CourtCourt of Appeal (Northern Ireland)
1
Neutral Citation No: [2019] NICA 49
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: MOR11068
Delivered: 27/9/2019
IN HER MAJESTY’S COURT OF APPEAL NORTHERN IRELAND
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
________
IN THE MATTER OF AN APPLICATION BY RAYMOND McCORD, JR83 and
JAMIE WARING FOR JUDICIAL REVIEW
________
RAYMOND McCORD, JR83 and JAMIE WARING
Applicants/Appellants;
and
(1) THE PRIME MINISTER (2) THE SECRETARY OF STATE FOR NORTHERN
IRELAND (3) THE SECRETARY OF STATE FOR EXITING THE EUROPEAN
UNION and (4) HER MAJESTY’S GOVERNMENT
Proposed Respondents/Respondents.
________
Before: Morgan LCJ, Stephens LJ and Treacy LJ
________
MORGAN LCJ (delivering the judgment of the court)
Introduction
[1] This is a judgment to which all the members of the court have contributed.
[2] Raymond McCord, Jamie Waring and JR 83 (“the appellants”) appeal against
the decision of McCloskey LJ (“the judge”) to dismiss those parts of their
applications for judicial review of various decisions of, in essence the Prime Minister,
the Rt Hon Boris Johnson MP and of the Secretary of State for Exiting the EU, the Rt
Hon Stephen Barclay which parts relied on section 10 of the European Union
(Withdrawal) Act 2018 (“the Withdrawal Act”) and refusing their applications for
leave to apply for judicial review of those decisions on all other grounds. In essence
the decisions which are challenged are those which have led the UK Government to
conduct negotiations with the EU 27 proposing measures which it is suggested do
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not protect the Belfast Agreement and/or which are not compatible with the
Northern Ireland Act 1998 (“NIA”). The Appellants contend that the prerogative
power of the Executive to conduct negotiations has been curtailed or abrogated
either expressly or by necessary implication by the European Union (Withdrawal)
Act 2018 so that those negotiations are justiciable and subject to the supervisory
jurisdiction of the courts.
[3] Mr Ronan Lavery QC and Mr Fegan appeared on behalf of Raymond McCord,
Mr Scoffield QC, Mr Christopher McCrudden and Mr Gordon Anthony appeared on
behalf of Jamie Waring, Mr Barry Macdonald QC, SC and Mr Malachy McGowan
appeared on behalf of JR83 and Mr McGleenan QC and Mr Philip McAteer appeared
on behalf of the Prime Minister, the Secretary of State for Northern Ireland, the
Secretary of State for Exiting the European Union and Her Majesty’s Government.
We are grateful to all counsel for their helpful oral and written submissions. We also
wish to acknowledge the helpful written submissions lodged by the Attorney
General with whom Mr Compton appeared.
The relevant provisions of EU and domestic law together with Parliamentary
material recorded in Hansard
[4] In this part of the judgment we will summarise relevant provisions of EU and
domestic law together with references to Parliamentary material contained in
Hansard.
The Belfast/Good Friday Agreement and the Northern Ireland Act 1998
[5] The preamble to the NIA describes it as “An Act to make new provision for
the government of Northern Ireland for the purpose of implementing the agreement
reached at multi-party talks on Northern Ireland set out in Command Paper 3883.”
Part V of the 1998 Act which is entitled “NSMC, BIC, BIIC etc.” makes provision in
respect of a number of bodies provided for in the Belfast/Good Friday Agreement
including the North-South Ministerial Council, the British-Irish Council and
Implementation bodies.
[6] In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
[2018] AC 61, 161, §128 it was stated that the NIA:
“is the product of the Belfast Agreement and the
British-Irish Agreement, and is a very important step
in the programme designed to achieve reconciliation
of the communities of Northern Ireland … [and] …
has established institutions and arrangements which
are intended to address the unique political history of
the province and the island of Ireland
In Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 [2002] NI 390, 398,
§11, Lord Bingham stated that the NIA:
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“… does not set out all the constitutional provisions
applicable to Northern Ireland, but it is in effect a
constitution … the provisions should, consistently
with the language used, be interpreted generously
and purposively, bearing in mind the values which
the constitutional provisions are intended to embody
In the same case Lord Hoffmann stated at paragraph 25 that the NIA
Is a “constitution for Northern Ireland, framed to
create a continuing form of government against the
history of the territory and the principles agreed in
Belfast.”
The European Union Referendum Act 2015
[7] Section 1 of the European Union Referendum Act 2015 provided for a
referendum on the question whether the UK should leave or remain a member of the
EU.
[8] On 23 June 2016, it was decided by a majority of those who voted in the
referendum that the UK should leave the EU.
The Treaty on European Union
[9] Article 50 of the Treaty on European Union (“the TEU”) provides the
mechanism for a Member State “to withdraw from the Union ….” Article 50(2)
provides that if a Member State decides to withdraw itshall notify the European
Council of its intention” (which we term “the notification”). Thereafter “… the
Union shall negotiate and conclude an agreement with that State, setting out the
arrangements for its withdrawal, ….Article 50(3) provides that the “Treaties shall
cease to apply to the State in question from the date of entry into force of the
withdrawal agreement or, failing that, two years after the notification , unless the
European Council, in agreement with the Member State concerned, unanimously
decides to extend this period.
[10] The notification can be revoked (see the judgment dated 10 December 2018 of
the CJEU in Wightman and Others v Secretary of State for Exiting the European Union
[2019] 1 CMLR 29). At paragraph 51 the CJEU stated that there were three stages of
the withdrawal process. First, notification to the European Council of the intention
to withdraw, secondly, negotiation and conclusion of an agreement setting out the
arrangements for withdrawal, taking into account the future relationship between
the state concerned and the European Union and, thirdly, the actual withdrawal
from the Union on the date of entry into force of that agreement or, failing that, two
years after the notification given to the European Council, unless the latter, in
agreement with the member state concerned, unanimously decides to extend that
period.

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2 cases
  • JR80's Application
    • United Kingdom
    • Court of Appeal (Northern Ireland)
    • 4 d1 Novembro d1 2019
    ...debate in Parliament, see R v Montila [2004] UKHL 50 at [34], an Application by Raymond McCord, JR83 and Jamie Waring for Judicial Review [2019] NICA 49 at paragraph [107] and Section 16.7 of Bennion on Statutory Interpretation (Seventh Edition). [64] Section 23(1) provides that “(the) exec......
  • Vince and Others v Prime Minister of the United Kingdom of Great Britain and Northern Ireland
    • United Kingdom
    • Court of Session (Outer House)
    • 7 d1 Outubro d1 2019
    ...Ireland Cases referred to: Carlton Hotel Co Ltd v Lord Advocate 1921 SC 237; 1921 1 SLT 126 McCord and ors v Prime Minister and ors [2019] NICA 49 McKenzie v Scottish Ministers 2004 SLT 1236 Murdoch v Murdoch 1973 SLT (Notes) 13 R (on the application of Webster) v Secretary of State for Exi......

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