High Court Article 50 Judgment Criticising Northern Ireland High Court

The England & Wales (E&W) High Court on 3rd November gave judgment on the legal process for invoking Article 50 and starting Brexit. See Miller v Sec of State for Exiting European Union [2016] EWHC 2768. The basis of that judgment was the correct legal method, in England & Wales, for invoking Article 50 to formally start the Brexit process.
Peculiarly at the end of the judgment, paragraphs 103-104, the E&W court criticises the 28th October judgment of the Northern Ireland (NI) High Court. See McCord, Re Judicial Review [2016] NIQB 85. Constitutionally this was awkward. The issues before each high court were of the utmost constitutional importance for both separate legal jurisdictions, E&W and NI; each of them being parts of the wider United Kingdom.
But the two cases were argued in their own separate ways and concerned different law, the Northern Ireland Act and the Good Friday Agreement, both from 1998, being central to the NI case but having no relevance for E&W.
It might have been more respectful had the E&W high court just confined itself to noting but making no comment about the NI high court judgment. Since each court is at the same level within the UK constitution each should respect the other.
The E&W high court could also be seen as inadvertently giving offence to NI law and lawyers in it criticisms of the NI judgment. It could also be seen as insensitive of the E&W court to refer to the Good Friday Agreement in inverted commas, as if that were not the right wording. Whilst formally titled the Northern Ireland Peace Agreement, also known as the Belfast Agreement, the term Good Friday Agreement has well established cultural and legal usage in both Northern Ireland, and the Republic of Ireland too. A NI court is entitled to refer to its own NI law and constitutional agreements but its own, correct, terms and not be subject to erroneous misquotes from another jurisdiction.
It was also perhaps misguided of the E&W high court to criticise the NI high court for not making reference to the, E&W, Bill of Rights. The E&W Bill of Rights was a creation of the E&W Parliament in 1689 to give a constitutional basis for the take-over of the throne in the 1688 Glorious Revolution by William and Mary from James II. Accordingly the constitutional application of an E&W Bill of Rights in NI is best dealt with by a NI court, using deftness and skill. After all one the Bill of Rights articles calls for the sectarian arming of one group of citizens, against another: Subjects’ Arms – That the Subjects which are [one religion] may have Arms for their Defence suitable to their Conditions and as allowed by Law.

Eamon McNicholas
Tax Barrister, Accountant

About Eamon McNicholas

Tax Barrister, Accountant www.EamonMcNicholas.com
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