Brexit: Northern Ireland High Court rejects judicial review petitions

McCloskey LJ has dismissed petitions for judicial review in the High Court in Belfast in three conjoined cases which contended that a no-deal Brexit on 31 October would undermine the Belfast Agreement between the UK and Ireland.

His written judgment was not immediately available either on BAILII or on the Judiciary NI website and the original post was based on media reports. The judgment is now on the Judiciary NI website: see In the Matter of Applications by Raymond McCord, Jr 83 and Jamie Waring for Leave to Apply for Judicial Review v The Prime Minister & Ors [2019] NIQB 78. The  basic conclusion was as follows:

“[116] … 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allegation and denial, blow and counter-blow, alteration and modification of government policy, public statements, unpublished deliberations, posturing, strategy and tactics are the very essence of what is both countenanced and permitted in a democratic society. The briefest of reflections on this incomplete and rudimentary formulation serves to reinforce the twofold juridical truisms that the judicial function must respect certain boundaries and, in instances where there is no ‘boundary’ prohibition, a concrete and completed act of government having legal effects and consequences is an essential prerequisite to the invocation of the supervisory jurisdiction of the High Court.

[117] I need not repeat the various features of the Applicants’ conjoined challenges highlighted in the body of this judgment. Considered in their totality they point inexorably to the conclusion that these cases trespass upon the prohibited domain of the non-justiciable. They qualify to be dismissed on this ground alone.”

One of the grounds of challenge was that the impugned decisions frustrate the operation of section 10(2)(a) and (b) of the European Union (Withdrawal) Act 2018. Leave to appeal was granted in respect of that issue only [118].

If the judgment is appealed, the hearing in the Northern Ireland Court of Appeal will be tomorrow, Friday.

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