High Court: Three challenges to Brexit strategy found ‘non-justiciable’

The High Court in Belfast has dismissed three conjoined applications challenging the UK Government’s Brexit strategy, which the applicants argued would result in a no-deal Brexit and a hard border in breach of the Good Friday Agreement.

Finding that the subject matter of the applications was “inherently and unmistakeably political”, Lord Justice Bernard McCloskey said the applications could be dismissed on grounds of non-justiciability alone. At the outset of the judgment, Lord Justice McCloskey said the Court would not consider applicants’ arguments regarding the prorogation of Parliament.

Conjoined applications

In the High Court, three applications for leave to apply for judicial review from Raymond McCord, Jamie Waring and an anonymised applicant, JR83, were conjoined. All three applications sought judicial intervention in what Lord Justice McCloskey described as the “evolving, fluctuating and uncompleted Brexit saga”.

Lord Justice McCloskey explained that, given the fact that “the centrepiece of the legal challenges in the Scottish and English proceedings” was the legality of the prorogation measure, and the three applications before the NI High Court raised “several other distinctly Northern Irish issues” – the Court ruled that for expediency and finality, “some curtailment of the breadth of these challenges was essential on pragmatic grounds”.

McCord case

Lord Justice McCloskey said the central thrust of Mr McCord’s case was that the UK Government would be acting unlawfully if it withdrew from the EU without an agreement.

Mr McCord contended, inter alia, that any withdrawal must be consistent with the Good Friday Agreement; that withdrawal without a deal is irrational, fails to account for material considerations and is oppressive to the citizens of Northern Ireland; the Courts are the best place to adjudicate tension between the Executive and Parliament – and is a textbook example of Courts safeguarding citizens’ rights and the role of Parliament; continued membership of the EU must be preserved until withdrawal can be effected without breaching the GFA.

Mr McCord submitted that the “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 risk that the UK will leave the EU without a withdrawal agreement”.

Mr McCord sought declaratory and mandatory remedies, and an order of certiorari quashing the European Union (Withdrawal) Act 2018 (Commencement Number 4) Regulations 2019 – “subordinate legislation the effect whereof is that the repeal of the European Communities Act 1972 will occur on ‘exit day’”.

Other applications

JR 83 submitted that the adoption of a combination of policies would “inevitably result in the creation or facilitation of a ‘hard border’ between Northern Ireland and the Republic of Ireland”.

JR 83 contended that the European Union (Withdrawal) Act 2018 (Commencement Number 4) Regulations 2019 were “a practical illustration of the unlawfulness of” the “combination of policy decisions” asserted. JR 83 sought, inter alia, declarations that a number of decisions were unlawful, frustrated the Northern Ireland Act 1998 and in conflict with the Northern Ireland peace process, and infringed “Articles 2, 3 and 8 ECHR, either singly or in conjunction with Article 14 ECHR, contrary to section 6 of the Human Rights Act”.

The focus of Jamie Waring’s case was “solely on the lawfulness of [the government’s] decision actively to pursue a ‘no deal’ exit that is inconsistent with the Belfast/Good Friday Agreement”.

Separation of powers

Lord Justice McCloskey said the targets of the applicants’ challenges had “the unmistakeable stamp hue and hallmark of government policy at both national and international levels”.

Finding the applications non-justiciable, Lord Justice McCloskey said the subject matter of the proceedings was “inherently and unmistakeably political to be beyond plausible dispute”.

He said that, “within the world of politics, the well-recognised phenomena of claim and counterclaim, assertion and counter-assertion, allegation and denial, blow and counter-blow, alteration and modification of government policy, public statements, unpublished deliberations, posturing, strategy and tactics are the very essence of what is both countenanced and permitted in a democratic society” – and that the judiciary must respect certain boundaries under the constitutional doctrine of the separation of powers.

Lord Justice McCloskey considered the submissions of the applicants at length in a 67-page judgment; however, he said that they qualified to be dismissed on the ground of justiciability alone.


The Court of Appeal is hearing an appeal of the judgment today, and Mr McCord has said he is determined that the voice of Northern Ireland will be heard in the UK Supreme Court along with the Scottish and English proceedings – including the issue of prorogation which was not considered by the High Court in Belfast.

  • by Róise Connolly for Irish Legal News

© Irish Legal News Ltd 2021

Tags: Brexit

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