Legal challenge to ‘unlawful’ Brexit deal ‘misconceived’, judge rules 

Jolyon Maugham QC was seeking interim suspension and interdict on the basis that the withdrawal agreement was in breach of legislation which prevented Northern Ireland forming part of a separate customs territory to the rest of the UK.

But a judge in the Court of Session refused the petition for interim orders after ruling that the petitioner failed to make out a “prima facie” case.

Lord Pentland heard that on 17 October 2019, Prime Minister Boris Johnson announced that the UK Government had secured a new deal with the European Union setting out the arrangements for the UK’s withdrawal from the EU, taking account of the framework for the country’s future relationship with EU member states.

The UK Government had intended to lay before each House of Parliament on Saturday 19 October 2019 a statement that it had concluded an agreement with the EU under Article 50(2) of the Treaty on European Union as required by section 1 of the European Union (Withdrawal) (No 2) Act 2019 and at the same time (i) a statement that political agreement has been reached, (ii) a copy of the negotiated withdrawal agreement and (iii) a copy of the framework for the future relationship, all as required by section 13(1)(a) of the European Union (Withdrawal) Act 2018.

‘Unlawful agreement’

However, the petitioner lodged a petition with the Court of Session and a motion to suspend ad interim the purported agreement on the basis that this agreement provides for Northern Ireland to form part of a separate customs territory to Great Britain; and for interdict ad interim against Ministers from entering into arrangements under which Northern Ireland is to form part of a separate customs territory to Great Britain.

Counsel for the petitioner argued that the what the Draft Withdrawal Agreement Protocol, which states that “Northern Ireland is part of the customs territory of the United Kingdom”, was seeking to do was to create an “overlapping Venn diagram” in which Northern Ireland is at one and the same time both a part of the customs territory of the UK and a part of the customs territory of the EU

By contrast, the island of Great Britain would, post-Brexit, form a part of the customs territory of the UK, but the island of Great Britain would no longer form a part of the customs territory of the EU.

It was submitted that section 55 of the Taxation (Cross-border Trade) Act 2018, which states that “it shall be unlawful for Her Majesty’s Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain”, constituted an “express statutory prohibition imposed by Parliament” on what the Executive can or cannot do in this area.

The legislation did not allow the UK Government even to propose for ratification by the UK Parliament any arrangement allowing for Northern Ireland to form part of a separate customs territory to Great Britain, as this would involve the UK Government impermissibly having entered into an arrangement with another party to allow for such a result.

It was submitted that the proposed interim orders would not have the effect of preventing the UK Parliament from considering matters as intended, but would ensure that MPs were “fully advised of the legal position” before deciding what should be done in the light of the orders pronounced by the court, for example repealing or amending section 55 of the 2018 Act and then considering the Prime Minister’s motion.

On behalf of the Advocate General for Scotland, it was argued that the petition was “incompetent” because it amounted to a manifest attempt to persuade the court to “interfere” with proceedings in Parliament. 

Under section 13(1) of the European Union (Withdrawal) Act 2018, parliamentary approval of the outcome of negotiations with the EU was required, and it was argued that the effect of an interim order for suspension would be to prevent the responsible minister from making to Parliament the statements required by the relevant legislation.

It was also submitted that the petitioner had failed to disclose a prima facie case as there was no factual evidence to support the assertion that Northern Ireland would not be part of the customs territory of the UK in future.

As to the balance of convenience, it was argued that the petitioner had failed to demonstrate any genuine urgency - it was for Parliament to decide whether and when anything should be done to amend or revoke the terms of section 55 of the 2018 Act and the balance of convenience strongly favoured allowing the legitimate democratic processes to proceed and for Parliament to have a free hand in the forthcoming debates.

‘Balance of convenience’

The judge ruled that the petitioner’s motion for interim orders was “misconceived and unjustified”.

In a written opinion issued at 5pm on the eve of the so-called “Super Saturday” debate at Westminster, Lord Pentland said: “In my opinion, the petitioner does not have a prima facie case. In the first place, the petition is of very doubtful competency. The orders sought would unquestionably interfere to a major extent with the proposed proceedings in Parliament.

“It is a cardinal principle of constitutional law that the courts should not intrude on the legitimate affairs and processes of Parliament. I consider that it should be left to Parliament to proceed in relation to the draft withdrawal agreement in the manner and according to the procedures that Parliament considers most appropriate in the circumstances.

“Secondly, I consider that the petitioner’s legal argument as to the incompatibility of the draft withdrawal agreement with section 55 of the 2018 Act is at best a weak one. 

“The petitioner has placed nothing before the court by way of evidence, averment or oral submission to show that in future Northern Ireland’s trading and customs arrangements will not qualify and fall to be treated as amounting to a ‘customs territory’ in the manner envisaged in the draft Protocol. 

“Thirdly, the balance of convenience, in my view, strongly points towards it being right for the court to decline to grant the interim orders sought. The petitioner has not convinced me that there is any genuine urgency such as to justify the granting of interim orders. 

“Counsel for the petitioner suggested that even if orders were granted, matters could nonetheless proceed in Parliament as currently planned, but Parliament would be able to have regard to the court’s view on the legality of the draft withdrawal agreement. 

“This, to my mind, makes little sense. It is not for the court to provide Parliament with some kind of advance advisory guidance.”

“Fourthly,” he added, “the petitioner’s approach fails to take account of the fact that the withdrawal agreement is at present still at the stage of being merely a draft instrument. It requires to be ratified, both at UK and EU levels. 

“These procedures should be allowed to be followed through in line with the appropriate processes in the UK Parliament and elsewhere. It would be quite wrong and contrary to basic constitutional principles for the court to interfere with them in the way that the petitioner has proposed.

“For all these reasons, I conclude that the petitioner’s applications for interim orders are misconceived and unjustified. They have no or at best a weak prima facie case. The balance of convenience comes down firmly on the side of refusing to make the orders. I shall accordingly refuse the petitioner’s motion insofar as it seeks interim orders.”

The court ordered intimidation and service of the petition and appointed answers to be lodged within seven days, but the petitioner subsequently indicated that the case was unlikely to proceed to a full hearing in light of the judgment.