NI Court of Appeal: Application for Brexit judicial review ‘substantially out of time’
Northern Ireland’s Court of Appeal has refused a renewed application for leave to issue judicial review proceedings against prime minister Boris Johnson for allegedly signing the Brexit deal and the Northern Ireland Protocol with no intention of adhering to it.
Handing down judgment on behalf of a three-judge panel, Lord Chief Justice Sir Declan Morgan said there was “no trigger for the commencement of these proceedings” and that the application “is substantially out of time and raised no legal matter requiring an extension of time”.
The anonymous appellant, known as “JR83”, was a 62-year-old grandmother who lives in Northern Ireland near the border. She is concerned about the consequences of a hard border as she regularly crosses between the north and the south.
On 30 October 2020, she sought leave to issue judicial review proceedings seeking a declaration that the decision of the prime minister on 24 January 2020 to sign the EU Withdrawal Agreement, including the Northern Ireland Protocol, was unlawful in that he did not intend that the UK government would be bound by, adhere to or otherwise fully implement the agreement.
The application for leave, which was lodged more than nine months after the Withdrawal Agreement was signed by the prime minister, was refused on the basis that the court did not consider that the mindset of the prime minister when signing the Withdrawal Agreement was a matter that the court could or should examine.
The appellant renewed her application to the Court of Appeal on the basis that the decision of the prime minister frustrated the will of Parliament and that it was unlawful for the prime minister to sign the Withdrawal Agreement if he did not intend to adhere to and fully implement it.
The appellant said the trigger for the issue of the proceedings was the production of the UK Internal Markets Bill and statements made ahead of this, which she submitted made clear that the UK government never intended to be bound by the Withdrawal Agreement.
Court of Appeal
The court considered that the appellant’s case was an impermissible challenge to the introduction of the UK Internal Markets Bill which was prohibited by Article 9 of the Bill of Rights Act 1689, which precludes the courts questioning the lawfulness of proceedings in Parliament.
It also noted that the challenge proceeded on the basis that she wished to see the implementation of the Withdrawal Agreement, which was now academic as its signing had secured that outcome.
The court said that any suggestion in the appellant’s submissions that the prime minister had authority to act in contravention of the Protocol in a manner prohibited by domestic law without any legal consequence was unfounded.
Although the court accepted that there was a limit on the prime minister’s power to ratify a treaty in that he was only permitted to sign the Withdrawal Agreement as it was laid before Parliament, with no changes or modifications, it rejected the appellant’s submission that the mindset of the prime minister was also a limitation on the exercise of the power.
Sir Declan Morgan said imposing a condition concerning the prime minister’s views “constitutes a direct interference with the constitutional right of a member of Parliament to raise matters in Parliament at a time and in circumstances of their choosing”.
The appellant claimed that there was an abuse of power by the prime minister contending that he intended to bring forward a proposal to Parliament to change the law which would have been in breach of the treaty. The court said that even if that contention had been made good, it did not consider that it would constitute a limitation on the exercise of the prerogative power.
Sir Declan Morgan said the judges “do not consider that the introduction of the relevant clauses of the bill and the public discussion around them provided any support for the contention that the Prime Minister behaved unlawfully”.
The court refused the renewed application for leave to issue judicial review proceedings.