JUDICIAL REVIEW OF THE BACKSTOP: POTENTIAL CROWDFUNDED CHALLENGE TO THE BREXIT AGREEMENT

A group of individuals (together named the Belfast Agreement Defence Group) have foreshadowed a judicial review in the High Court of England & Wales (Administrative Court). The challenge would seek an alternative to the Irish backstop protocol as provided for in the Draft EU Withdrawal Agreement which was agreed in principle between the UK Government and the EU in November last year.

The action is a further instance of interest groups turning to judicial review as a means to seek to effect a change in the Government's Brexit policy and, like those previous Brexit challenges, may raise interesting questions of the group's standing to bring the challenge and whether the decision in question is justiciable or otherwise appropriate for judicial review.

The proposed challenge

Solicitors for the crowdfunded potential claimants, who include Lord Trimble, former First Minster of Northern Ireland, sent a letter before claim to the UK Government Legal Department on 8 February, requesting a response by 22 February (the Pre-action Letter).

The claimants assert that the backstop provisions currently proposed under the withdrawal deal would allow the Irish government to exercise governmental functions in Northern Ireland and seeks that the UK Government be compelled to use the channels available under the Belfast 'Good Friday' Agreement to reach an alternative arrangement with Ireland and the EU over the Irish border.

The claimants outline three grounds on which the challenge would seek to rely, namely:

• The proposed defendants are in breach of the Union of Ireland Act 1800 in that Northern Ireland is being treated differently from Great Britain;
• Provisions in the Northern Ireland Act 1998 have been breached, in that arrangements to avoid a hard border have not been put into the British-Irish conference for bilateral negotiation; and
• Subject to considerations of justiciability, article 30(2) of the 1969 Vienna Convention of the Law of Treaties provides that the Belfast Agreement prevails on the question of no hard border, whilst the UK is negotiating its withdrawal from the EU.

The legal remedies sought include a mandatory order requiring the defendants to bring forward the next meeting of the British-Irish intergovernmental conference and to present draft alternative arrangements to those set out in the EU Withdrawal Agreement to the Irish government, as well as declaratory relief. The focus therefore is on the mechanisms by which possible alternative arrangements to the backstop may be reached, as opposed to the substance of those arrangements.

1. Claimants' standing to bring a challenge

The first question the action may raise is who has standing to challenge the Government's Brexit decisions. In order for a claim to proceed, the Administrative Court would need to be satisfied that the claimants, who include Jeffrey Dudgeon (Ulster Unionist Party Member of Belfast City Council) and writer Ruth Dudley Edwards, alongside Lord Trimble, have standing to bring the judicial review claim. Under English law, a party must have sufficient interest in the matter to which the judicial review relates, in order to bring a claim. The courts have, however, in the past been willing to accept that "public interest" groups have standing on issues which are of particular public importance, so claimants do not necessarily need to demonstrate that they have been personally affected by the decision.

2. The decision subject to challenge

The second question the action raises is what particular decision or conduct is to be the subject of judicial review and whether that decision is justiciable or otherwise appropriate for judicial review.

The Pre-action Letter itself does not explicitly identify the decision, action or failure to act that is to be challenged, however, it suggests the relevant actions are the publication of the draft EU Withdrawal Agreement on 14 November 2018 alongside the political declaration made on 22 November 2018, which together comprise the withdrawal deal and set out the proposed backstop arrangements, as agreed between the UK and the EU. If the potential claim proceeds, the Court would need to accept that these actions are appropriate actions to be subjected to judicial review, given that the withdrawal deal remains subject to parliamentary approval and ongoing negotiations between the UK Government and Brussels.

In the context of other Brexit-related challenges, courts have carefully considered whether the issue is appropriate for judicial review. In the Webster case last year (R (on the application of Elizabeth Webster) v Secretary of State for Exiting the EU), the claimant sought to challenge various aspects of the Brexit negotiations by alleging that the UK had failed to make a valid decision to withdraw from the EU. The Court rejected the application as being totally without merit and concluded that "Put bluntly, the debate which the claimant seeks to promote belongs firmly in the political arena, not the courts". Similarly, in the Wightman case (Wightman v Secretary of State for Exiting the EU), the petitioners were Members of Parliament seeking a declaration as to whether the UK's Article 50 notice to the EU could be unilaterally revoked by the UK. The Scottish Court of Session held that the petition was hypothetical and in any event beyond the court's jurisdiction as an encroachment on parliamentary sovereignty, because the MPs were seeking to enlist "judicial support for the option of the UK remaining in the European Union to be considered by Parliament". However, that decision was overturned on appeal and the issue was considered appropriate for the Court to determine, ultimately resulting in the important decision of the CJEU that the UK could unilaterally withdraw its Article 50 notification in appropriate circumstances.

Comment

The Belfast Agreement Defence Group's foreshadowed action is another example of a high profile action by a public interest group which seeks to deploy judicial review with the stated aim of changing the UK Government's stance on Brexit policy. As with earlier Brexit challenges, the action may raise fundamental public law questions as to whether positions taken or agreed in principle by the UK Government in ongoing negotiations with the EU can be challenged by a public interest group on the basis that the Government's position is alleged to be contrary to existing legislation and treaty obligations.

In our View from Brussels piece, our colleagues in Brussels comment on the potential inconsistency between the backstop and EU law and the potential for recourse to the CJEU.