Raymond McCord’s Application: Border Poll
| Jurisdiction | Northern Ireland |
| Judge | Stephens LJ |
| Judgment Date | 27 April 2020 |
| Neutral Citation | [2020] NICA 23 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 27 April 2020 |
1
Neutral Citation No: [2020] NICA 23 Ref: STE11241
Judgment: approved by the Court for handing down
Delivered:
27/04/2020
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
Raymond McCord’s Application: Border Poll
_____________
IN THE MATTER OF AN APPLICATION BY RAYMOND McCORD FOR
JUDICIAL REVIEW
________
Before: Stephens LJ, Treacy LJ and Colton J
________
STEPHENS LJ (delivering the judgment of the court)
Introduction
[1] There has been longstanding conflict over the partition of Ireland. A key
aspiration of Irish nationalists has been to bring about a united Ireland, with the
whole island forming one independent state. This aspiration conflicts with that of
unionists in Northern Ireland, who want the region to remain part of the
United Kingdom. These conflicting aspirations and the resulting conflicts have led
to many tragedies with a deep and profoundly regrettable legacy of suffering. A
resolution to this aspect of the conflict was found in the Belfast Agreement dated
10 April 1998 which made provision that a united Ireland “must be achieved and
exercised with and subject to the agreement and consent of a majority of the people of
Northern Ireland.” This means that the status of Northern Ireland will not change
without the consent of a majority of its population. The Belfast Agreement also
provided that the Secretary of State for Northern Ireland (“the respondent”) was the
person responsible for directing by order when a poll is to be held as to whether
Northern Ireland shall cease to be a part of the United Kingdom and form part of a
united Ireland (“a border poll”). These provisions in the Belfast Agreement were
2
enacted in section 1 and Schedule 1 of the Northern Ireland Act 1998 (“the NIA”).
This is not a final outcome between these conflicting aspirations but rather it sets the
principles and the mechanism within which the conflict is to be managed. In these
judicial review proceedings Raymond McCord (“the appellant”) claimed that there
was insufficient clarity and transparency in relation to the mechanism for directing a
border poll. He claimed that the refusal or failure of the respondent to have a policy
setting out the circumstances in which he will direct the holding of a border poll is a
breach of the constitutional issues provided for in the Belfast Agreement. He sought
an order that the respondent publish a policy setting out the circumstances in which
he will direct the holding of a border poll. The issues for determination at first
instance were (a) whether the respondent was required to publish a policy
governing the discretion to hold a border poll under section 1 and Schedule 1
paragraph 1 of the NIA and (b) whether the respondent was required to publish a
policy governing the requirement to hold a border poll under section 1 and Schedule
1 paragraph 2 of the NIA.
[2] The appellant’s application for judicial review was dismissed by
Sir Paul Girvan (“the judge”) under citation [2018] NIQB 106 and the appellant
brings this appeal.
[3] At the date of the first instance judgment the Secretary of State for
Northern Ireland was the Rt Hon Karen Bradley, M.P. The present Secretary of State
for Northern Ireland is the Rt Hon Brandon Lewis CBE, M.P.
[4] Mr Lavery QC appeared with Mr Fegan for the appellant. Dr McGleenan QC
appeared with Mr McLaughlin and Ms Ellison on behalf of the respondent.
The first instance proceedings
[5] We consider it appropriate to set out a sequence in relation to the first
instance proceedings to identify precisely the issues which were before the judge
and precisely which issues are before this court.
[6] On 21 June 2017 the appellant applied ex parte pursuant to Order 53, Rule 3 of
the Rules of the Court of Judicature (Northern Ireland) 1980 for leave to apply for
judicial review. On the same date the applicant lodged his Order 53 statement and
an affidavit. The relief sought by the appellant all centred around “the respondent’s
failure or refusal to have a policy which sets out the circumstances in which the
respondent will order the holding of a (border) poll.” At this stage the appellant was
not making the case that there had been a decision by the Secretary of State not to
hold a border poll (“a negative decision”). No case was being made that if there had
been a negative decision then that decision was unlawful. Furthermore, at this stage
the appellant was not seeking an order of certiorari quashing the decision not to hold
a border poll. Finally, in that part of the Order 53 statement which sought
“particulars of any claim to rights under the European Convention on Human
rights” (“ECHR”) the appellant answered “none.”
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McQuillan, Re Application for Judicial Review
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Allister (James Hugh) et al’s Application AND In the matter of the Protocol NI
...been approved in this jurisdiction in for example the cases of JR80’s Application [2019] NICA 58 and Re McCord’s Application: Border Poll [2020] NICA 23. However, it is clear from the text of the Agreements and from the statute itself that reference to the status of Northern Ireland in the ......
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Tanner's (Curtis) Application and in the matter of a decision of The Northern Ireland Prison Service
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