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Brexit in court…  October 5, 2016

Posted by WorldbyStorm in Uncategorized.



Well now, the way Brexit is beginning to play out in relation to the North is extremely interesting. The McCord case is perhaps most interesting because it is the first in the field as it were to have the issues aired in court. The arguments are important, and echo much of what has been discussed here in the past number of months, not least about the centrality of the GFA/BA.

Ronan Lavery, QC, argued before Mr Justice Maguire that as a result of the Belfast Agreement, Northern Ireland has special constitutional status within the United Kingdom.

He said that when the British and Irish governments endorsed the Belfast Agreement of Good Friday 1998 they signed up to the people of Northern Ireland having a “veto” over any change to the constitutional position of Northern Ireland. Taking Northern Ireland out of the EU without consent would breach that veto, he contended.

In the June referendum Northern Ireland voted by 56 per cent to remain in the EU while an overall majority of the people of the UK voted to quit Europe.


However Mr Lavery argued that the Belfast Agreement was the effective constitution for Northern Ireland and it was for the people of Northern Ireland alone to determine whether there should be any change to that position. “Only the people of Northern Ireland can decide if there will be any change to the constitutional status of Northern Ireland,” Mr Lavery said.

And Lavery argues that:


Brexit could have a “catastrophic effect on the peace process”.

Perhaps that is overstating it, but I’d be loath to put a hard border to the test. Simply put it’s a damn sight more difficult to take aim at something that doesn’t – to all intents and purposes – exist than something that has installations, fixtures and so on.

McCord is an interesting person too, and seems to reflect on a personal level how this is beginning to pan out…

…victims’ campaigner Mr McCord, whose son Raymond junior was murdered by the Ulster Volunteer Force in 1997, relied on elements of such legislation.

He said Mr McCord was British and a unionist but because of the “upheaval” caused by the referendum he was now considering applying for an Irish passport. Mr McCord is taking part in a two-day judicial review seeking to challenge the British government’s insistence that Brexit is also binding on Northern Ireland.

Of course that doesn’t make him less unionist, but it does suggests that in a place of overlapping and multiple identities a certain amount of fluidity may be apparent.

There are others in the field too. “Normal” politics, let alone class politics, hasn’t yet broken out in the North, but who thought the day would come when we’d see this range of opinions on the same side…

A group of politicians and human rights representatives that include the SDLP and Alliance leaders, Colum Eastwood and David Ford, former Sinn Féin minister John O’Dowd, Green Assembly member Steven Agnew, former Progressive Unionist Party leader Dawn Purvis and the Committee on the Administration of Justice (CAJ) are also engaged in the judicial review.

I am both concerned and fascinated by all this – well obviously, there’s a fair few posts on the topic these days, but given its centrality to political, economic and other matters on this island and these islands I hope that that is understandable. Whether and how the UK government upholds the GFA/BA is going to be most instructive. It is, after all, a binding international agreement. Though one suspects that the British never quite envisaged the binding aspect – one which saw the Republic recognise the fact of NI as part of UK territory for the first time, would operate in this direction too. Or perhaps previous governments did but this one simply doesn’t care. If that’s the case then this has an exemplary and educational effect far beyond the specific scope of the issue.

Meanwhile the comments from Arlene Foster should be treated with the disdain they deserve. If she thinks techno-fixes are going to solve this one she’s in utter denial.

I’ve got to stress again that in in my view in terms of the broad brush strokes Brexit is a done deal – short of a UK court determining otherwise, which is entirely a matter for the UK legal system. The vote was legitimate, even if advisory. Brexit will occur, in whatever flavour  – and indeed should and must occur. I think that’s an historic mistake on the part of the UK, but it is what it is and has to be accepted – I’d think for at least half a decade, possibly a decade, at least in terms allowing it to occur and settle down. Where this breaks down is – ironically enough, at the fringes, Scotland, Ireland and so on where Brexit runs into other democratically validated agreements. The fault is not with the British government for pursuing Brexit, they have no real choice in that matter – it is rather with the implications of Brexit for this island and their palpable lack of concern in that regard.

Is the truth that the GFA/BA was in reality contingent, contingent on a British Labour government willing to do a deal where the Tories weren’t, on both islands being in the EU, on a  personal engagement by protagonists from across the spectrum of Irish and British politics? Contingent perhaps most of all on Britain being willing at that particular historical moment to allow a diminution of its sovereignty. A British willingness that is now gone? If that is the case it suggests that a Britain untrammelled by the EU is a Britain that will be vastly more problematic than before (and already we see how it is softening its adherence to international and European norms – as with this). 

I would be interested to hear what the Labour party in the UK has to say about all this. Certainly if there’s one aspect of Brexit they could comfortably stand behind surely it is a reasonable agreement in relation to this island (as well as pushing back against developments such as that linked to directly above)?



1. Peter James - October 5, 2016

Doesn’t it look by now that only a hard Brexit is in the offing?, to judge by signals coming from London, Paris & Berlin (the only places that matter in this process)

A hard border follows inevitably unless Ireland leaves too.

Perhaps if Ireland stepped out of the EU into EEA, the Common Travel Area and free movement between Ireland and the EU could be maintained. That is the border could be fudged some how.


2. gendjinn - October 5, 2016

McCord has done impressive, unrelenting work the last 20 years.

The GFA states the ECHR will apply in NI and that’s been on the chopping block for years. The references to the EU are weaker. The constitutional veto would almost universally held to refer to the union/re-unification, not membership of the EU.

Fun and all, the case will get about as far as the govt wants it to.

Liked by 1 person

3. Joe - October 9, 2016

Not sure which thread to put this link on.


Not sure what to make of the story either. Probably makes sense for govt of RoI if minimising ‘hardness’ of the RoI/NI border is the priority. But does it mean that the RoI will be to an extent implementing the British govt’s immigration policy for it?
And I thought the EU’s line was no preparatory negotiations/discussions before Article 50 is triggered. Yet here we have, it appears, a fair bit of work and discussion between the RoI and UK govts in preparation for life after Brexit.


WorldbyStorm - October 9, 2016

I suppose it can be waved in under the Common Travel Area. This would be a pretty good way of doing things (in the broader sense of having an island wide customs zone – not so keen on fortress Britain propped up by the RoI). But yes, I think you’re correct that on some level the RoI would be implementing British immigration policy. Thing is does this wash?


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