On 28 October 2016 Mr Justice Maguire in the High Court in Northern Ireland gave judgment in two judicial review applications: McCord and Agnew and Others v the Secretaries of State for Exiting the European Union and Northern Ireland. The issues which were common with the claims made by Miller and Others v the Secretary of State for Exiting the European Union were stayed (and remain so) pending the final outcome in those proceedings. The applicants’ other claims – which related exclusively to Northern Ireland matters – were dismissed with the High Court in Northern Ireland finding entirely in the Government’s favour.
Subsequently, on an application made by the Attorney General for Northern Ireland, the issues raised in Agnew and Others were referred by the High Court in Northern Ireland to the Supreme Court. The claims raised in Mr McCord’s case were subsequently also referred to the Supreme Court by the Court of Appeal in Northern Ireland. These claims are now therefore being considered alongside the case of Miller.
In response to the claims made by both Northern Ireland appellants, the Government has filed its printed case.
The UK Government’s response relies on the decision of Mr Justice Maguire and, in particular, makes the following points:
For the same reasons as are set out in the Government’s main printed case, there is nothing in the Northern Ireland Act 1998 or the Belfast Agreement which requires an Act of Parliament before the Government can trigger Article 50, or which restricts how the Government may exercise that power. Foreign affairs and international relations are not devolved matters.
As to the Sewel Convention (the convention that the Westminster Parliament will not normally legislate with regard to devolved matters in Northern Ireland without the consent of the Northern Ireland Assembly), this issue has been addressed in full in the Government’s separate printed case on devolution issues. This point is, at present, moot.
The statutory duty under section 75 of the Northern Ireland Act 1998 to have regard to equality considerations is not engaged. Triggering Article 50 is not a function that relates to Northern Ireland within the meaning of that section, and the duty does not, in any event apply to the Secretary of State.
Neither the Northern Ireland Act 1998 nor the Belfast Agreement require the consent of the people of Northern Ireland before article 50 can be triggered. Under the Belfast Agreement, there may not be a united Ireland without the consent of the people of Northern Ireland, but that does not mean that their consent is required for any change in the constitutional arrangements for Northern Ireland and in particular any change in the United Kingdom’s relationship with the European Union.