McCord’s (Raymond) Application - and in the Matter of Article 50 of the Treaty of the European Union And In the Matter of Application to Leave to Apply for Judicial Review by (1) Steven Agnew, (2) Colum Eastwood, (3) David Ford (4) John O'Dowd (5) Dessie Donnelly (6) Dawn Purvis (7) Monica Wilson (8) The Committee on the Administration of Justice, (9) The Human Rights Consortium v (1) Her Majesty's Government, (2) The Secretary of State for Northern Ireland, (3) The Secretary of State for Exiting the European Union
| Jurisdiction | Northern Ireland |
| Judge | Maguire J |
| Judgment Date | 28 October 2016 |
| Neutral Citation | [2016] NIQB 85 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 28 October 2016 |
| Year | 2016 |
1
Neutral Citation: [2016] NIQB 85Ref:
MAG10076
Judgment: approved by the Court for handing downDelivered:
28/10/2016
(subject to editorial corrections)*
070763 2016
0742601/01 2016
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
McCord’s (Raymond) Application [2016] NIQB 85
IN THE MATTER OF AN APPLICATION BY RAYMOND McCORD
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF ARTICLE 50 OF THE TREATY OF THE
EUROPEAN UNION
ANDIN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR
JUDICIAL REVIEW BY
(1) STEVEN AGNEW
(2) COLUM EASTWOOD
(3) DAVID FORD
(4) JOHN O’DOWD
(5) DESSIE DONNELLY
(6) DAWN PURVIS
(7) MONICA WILSON
(8)THE COMMITTEE ON THE ADMINISTRATION OF JUSTICE
(9) THE HUMAN RIGHTS CONSORTIUM
AND
(1) HER MAJESTY’S GOVERNMENT
(2) THE SECRETARY OF STATE FOR NORTHERN IRELAND
(3) THE SECRETARY OF STATE FOR EXITING THE
EUROPEAN UNION
Respondents
________
MAGUIRE J
Introduction
2
[1]The court has before it two applications for judicial review which
substantially relate to the same subject matter – the intention of the Government,
following the result of the referendum held in the United Kingdom on 23 June 2016
and in the light of the result, where a majority of those who voted, voted in favour of
the United Kingdom leaving the EU – to use the Royal Prerogative to invoke Article
50 TEU to trigger the process by which withdrawal from the EU is effected.
[2]The first application has been made by RaymondMcCord, who is a man of 62
years of age. He describes himself as a British and European citizen and as a
resident of Northern Ireland. He has, as his Order 53 relates, acted as a victims’
campaigner following the murder of his son, Raymond, by Loyalist paramilitaries on
9 November 1997.
[3]The second application has been made by multiple applicantsand will be
referred to herein as Agnew and Others. The majority of the applicants are
politicians, including several who are members of the Northern Ireland Assembly.
In addition, there are applicants who have close associations with the voluntary and
community sector in Northern Ireland. This group of applicants also includes
concerned human rights organisations: the Committee on the Administration of
Justice (an independent human rights organisation with a cross community
membership in Northern Ireland) and the Human Rights Consortium (a charity with
over 160 member organisations from across all communities in Northern Ireland).
[4]The intended respondents are variously described in the Order 53 Statements.
In essence, the applications are directed at Her Majesty’s Government for the
UnitedKingdom. A number of Secretaries of State are expressly referred to: in
particular, the Secretary of State forExiting the European Union and the Secretary of
State for Northern Ireland.
[5]As, in the view of the court, the applications raised devolution issues for the
purpose of Order 120 of the Rules of the Court of Judicature, the court served
devolution notices on the Attorney General, the Attorney General for
NorthernIreland and others. In response, the Attorney General for Northern Ireland
entered an appearance and has provided to the court written and oral
representations in respect of the devolution issues.
[6]The applications for judicial review have been considered together. Because
of their urgency, the court has dealt with them under an expedited timetable. The
hearing before the court has taken the form of a rolled up hearing so that the court
technically has beforeit both the issue of leave to apply for judicial review and the
issue of appropriate relief in the event that leave to apply for judicial review is
granted.
[7]Mr Ronan Lavery QC and MrConanFegan BL appeared for Mr McCord.
MrDavid Scoffield QC and Mr Christopher McCrudden BL and Mr Gordon
Anthony BL appeared for the applicants in Agnew and Others. Mr Tony McGleenan
3
QC and Mr Paul McLaughlin BL appeared for the intended respondents in each
case. As already noted, the Attorney General for Northern Ireland, Mr John Larkin
QCand Miss Leona Gillen, entered an appearance and made written and oral
submissions. The court is grateful to all counsel for their submissions and for their
assistance in enabling the proceedings to be brought to hearing quickly.
Case Management
[8]Apart from the issue of the urgency of these applications, a matter which the
court has had to consider is the relationship these proceedings should bear to similar
proceedings which, at the time these applications were brought, were already
underway in the jurisdiction of England and Wales. The English proceedings,
R (Miller) and others v Secretary of State for Exiting the European Union, also is
concernedwith the means by which Article 50 TEU is to be triggered and the
question of the displacement of prerogative executive power by statute. In that
litigation, at centre stage is the question of whether the statutory provisions which
have the intention of providing for EU law in the United Kingdom limit the
operation of prerogative power, the archetypal example being the European
Communities Act 1972. While this issue also has been raised in the challenges before
this court, this court also has before it a range of specifically Northern Irish
constitutional provisions which are said to have the same or a similar impact on the
means of triggering Article 50.
[9]In view of the overlap between the respective challenges the court, on the
application of the intended respondents, sought to avoid these proceedings simply
duplicating those in England and Wales. Accordingly the court has stayed the
consideration of the central issues which the English courts will deal with. Instead,
theseproceedings have sought to concentrate on the impact of Northern Ireland
constitutional provisionsin respect of notice under Article 50and it is with this
subject that this judgment is concerned. With the co-operation of the parties, the
grounds of challenge which will be dealt with in Millar and others(in particular,
grounds 3(b) and (c) in McCordand ground 4(2)(a)(i) in Agnew and others) have
been held over pending the outcome of the English litigation.
The background to the applications
[10] It is unnecessary to go into great detail about the background to these
challenges. It will suffice to say that the issue of withdrawal by the United Kingdom
from the EU has, for some time, been a feature of the political agenda. It was not,
however, until relatively recently that the Government at Westminster determined
that there should be a referendum held on the question of whether the
UnitedKingdom should remain a member of the EU.The Government’s intention to
hold a referendum on EU membership was announced in January 2013.
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4 cases
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R (Miller and Another) v Secretary of State for Exiting the European Union
...of our judgment was in the course of preparation Maguire J handed down his judgment in the Northern Ireland proceedings: Re McCord's Application [2016] NIQB 85. We do not say anything about the proper interpretation or effect of the Northern Ireland Act 1998; the parties before us deliberat......
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James Hugh Allister, Benyamin Naeem Habib, Steve Aiken, The Rt Hon. Arlene Isobel Foster, Baroness Catharine Hoey of Lylehill and Rathlin and William David, The Rt Hon. Baron Trimble of Lisnagarvey and Secretary of State for Nothern Ireland and Clifford Peeples and (1) The Prime Minister (2) Secretary of State for Northern Ireland (3) Chancellor of The Duchy of Lancaster
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James Hugh Allister, Benyamin Naeem Habib, Steve Aiken, The Rt Hon. Arlene Isobel Foster, Baroness Catharine Hoey of Lylehill and Rathlin and William David, The Rt Hon. Baron Trimble of Lisnagarvey and Secretary of State for Nothern Ireland and Clifford Peeples and (1) The Prime Minister (2) Secretary of State for Northern Ireland (3) Chancellor of The Duchy of Lancaster
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Brexit and Parliamentary Sovereignty
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R (Miller) v Secretary of State for Exiting the European Union: Three Competing Syllogisms
...(Admin) (3November 2016) per Lord Thomas of Cwmgiedd LCJ, Sir Terence Etherton MR and Sales LJ(Miller (DC)).4Re McCord, Judicial Review [2016] NIQB 85 (28 October 2016) per Maguire J (McCord (HC)).5Miller n2aboveat[2]per the major ity, at [154] per Lord Reed, at [276] per Lord Hughes.6ibid ......
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