McCord’s (Raymond) Application - In the Matter of an Applicatio... https://www.courtsni.gov.uk/en-GB/Judicial Decisions/Published... Neutral Citation: [2016] NIQB 85 Ref: MAG10076 Judgment: approved by the Court for handing down Delivered: 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 AND IN 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 1 sur 42 27/01/2017 09:35 McCord’s (Raymond) Application - In the Matter of an Applicatio... https://www.courtsni.gov.uk/en-GB/Judicial Decisions/Published... Introduction [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 Raymond McCord, 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 applicants and 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 United Kingdom. A number of Secretaries of State are expressly referred to: in particular, the Secretary of State for Exiting 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 Northern Ireland 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 before it 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 Mr Conan Fegan BL appeared for Mr McCord. Mr David Scoffield QC and Mr Christopher McCrudden BL and Mr Gordon Anthony BL appeared for the applicants in Agnew and Others. Mr Tony McGleenan QC and Mr Paul McLaughlin BL 2 sur 42 27/01/2017 09:35 McCord’s (Raymond) Application - In the Matter of an Applicatio... https://www.courtsni.gov.uk/en-GB/Judicial Decisions/Published... appeared for the intended respondents in each case. As already noted, the Attorney General for Northern Ireland, Mr John Larkin QC and 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 concerned with 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, these proceedings have sought to concentrate on the impact of Northern Ireland constitutional provisions in respect of notice under Article 50 and 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 McCord and 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 United Kingdom should remain a member of the EU. The Government’s intention to hold a referendum on EU membership was announced in January 2013. [11] In 2015 the European Union Referendum Act was passed. This made provision for such a referendum. Section 1(4) set out the question which was to appear on the ballot paper as follows: 3 sur 42 27/01/2017 09:35 McCord’s (Raymond) Application - In the Matter of an Applicatio... https://www.courtsni.gov.uk/en-GB/Judicial Decisions/Published... “Should the United Kingdom remain a member of the European Union or leave the European Union?” The alternative answers to the above question appearing on the ballot papers were (as per Section 1(5)): “Remain a member of the European Union Leave the European Union.” [12] The 2015 Act also provided for the publication of a report which contained a statement in relation to the outcome of negotiations relating to the United Kingdom’s request for reforms to address concerns over the United Kingdom’s membership of the EU and the opinion of the Government of the United Kingdom on what had been agreed (see Section 6(1)). Other information also had to be published (see Section 7). [13] Part VII of the Political Parties, Elections and Referendums Act 2000 applied to the referendum (see: Section 3 of the 2015 Act). This defined the term “referendum” as “a referendum or other poll held, in pursuance of any provision made by or under an Act of Parliament, on one or more questions specified in or in accordance with any such provision”. [14] The referendum took place on 23 June 2016. Its result was that 51.89% of the valid votes were cast in the United Kingdom in favour of leaving the European Union while 48.11% were in favour of remaining. In Northern Ireland, 55.8% of the valid votes were in favour of remaining in the European Union, while 44.2% were in favour of leaving. [15] On 24 June 2016, in a public statement, the Prime Minister (David Cameron MP) accepted the result of the referendum and indicated that it would be for a new Prime Minister to decide when to trigger Article 50 TEU. [16] Pre-action correspondence between each of the applicants and the Crown Solicitor’s Office began in July 2016. In the McCord case the initial letter of claim was dated 27 July 2016 and was responded to on 5 August 2016. In the case of Agnew and others the initial correspondence was dated 22 July 2016 and this also was responded to on 5 August 2016.