The courts and the EU Referendum: a week of action

The past seven days have seen significant developments in relation to EU referendum related action in the courts at both local and UK level. This article provides an update and reflects on how they relate to the overall withdrawal process.

On 23rd June 2016 a majority of voters across the UK voted to leave the EU. However, as the outcome of the referendum was advisory rather than mandatory, and the referendum legislation was silent on what was to follow a leave majority, a hiatus has ensued. The majority remain votes in Scotland and Northern Ireland have further complicated matters.

The lack of certainty regarding the first steps of the withdrawal process has provided space for academic theorising and attempts to use the courts to establish clarity. Legal action is underway in a number of jurisdictions, including Northern Ireland. A particular focus of this action is the role of parliament and the devolved legislatures in relation to Article 50 of the Treaty on European Union.

Article 50 is the Treaty base for withdrawal of a Member State from the EU and there is general agreement that it will provide the mechanism for UK withdrawal[1].

However, until the courts have adjudicated on the issues put to them, legal uncertainty will remain and theorising on possible future scenarios will continue. Even when the courts do adjudicate, the manner in which withdrawal happens is likely to be determined as much by political reality as legal certainty.

It is worth noting that significant developments have occurred within the courts at both local and UK level in the last seven days.

On Thursday 22^nd September it was reported that Northern Ireland’s Attorney General, John Larkin QC, was set to become involved in two EU referendum related challenges before the High Court in Belfast, as the court had ordered that notice of a devolution issue be given to him and to the Office of the First Minister and the Deputy First Minister (OFMDFM). In broad terms a devolution issue involves a question regarding whether or not a devolved body has acted or proposes to act within its powers or has failed to comply with a duty imposed on it.

On Wednesday of this week, it was also reported that Justice Maguire had ruled that an agreed list of EU Referendum related issues particular to Northern Ireland would be heard in Judicial Review proceedings on 4-5 October.

On the same day, at the UK level, action relating to the EU Referendum was taking place in the High Court in London. Commenting on that activity, the legal firm Bindmans, which is representing a group of ‘concerned British Citizens’ involved in a challenge to the UK Government’s plans to use the Royal Prerogative to evoke Article 50, announced that the group had won the right to publish the Government’s complete legal defence and an unredacted version of their submissions ahead of a Court hearing in October.

Each of these challenges are of relevance because, until they are resolved, the process of withdrawal is unlikely to begin and the full legislative and policy implications of the Brexit vote for Northern Ireland will remain unclear.

[1] The House of Commons Library has produced a paper explaining in further depth how the Article 50 process works.