Limits of Prerogative Power in Treaty Ratification: Insights from JR83 (No 2) [2021] NICA 49

1. Introduction

The case of JR83 (No 2) ([2021] NICA 49) serves as a pivotal judicial examination of the bounds of prerogative powers, particularly concerning the ratification of international treaties by the Prime Minister. The appellant, a concerned citizen from Northern Ireland, challenged the legality of the Prime Minister's decision to sign the Withdrawal Agreement (Brexit), alleging that it was executed without genuine intent to adhere to its provisions, thereby frustrating Parliament's will.

This commentary delves into the intricacies of the case, exploring the background, legal arguments, and the court's reasoning, ultimately highlighting the implications of this judgment on the broader legal landscape.

2. Summary of the Judgment

The appellant sought judicial review to declare the Prime Minister's signing of the Withdrawal Agreement unlawful, contending that it was executed without the intention to implement its terms fully. The High Court initially refused the application for leave, a decision upheld by the Court of Appeal. The appellate court deemed the application "substantially out of time" and found no legal basis to extend the deadline for judicial review. Furthermore, the court maintained that the exercise of prerogative power in ratifying the treaty fell within lawful limits, and the appellant's assertions did not establish an abuse of power warranting judicial intervention.

3. Analysis

3.1 Precedents Cited

The judgment references several key precedents to underpin its reasoning:

R (Miller) v Prime Minister and Others [2020] AC 373: This landmark case addressed the justiciability of prerogative powers, particularly focusing on the prorogation of Parliament. The Supreme Court distinguished between the existence and extent of prerogative power and the justiciability of its exercise.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374: Also known as the GCHQ case, it established that courts could review the existence and limits of prerogative powers.
A v Secretary of State for the Home Department [2005] 1 AC 68: This case emphasized the separation between political and judicial resolutions, particularly regarding questions that are "purely political."

These precedents collectively informed the court's approach to assessing the justiciability of the appellant's claims, especially concerning the scope and limits of the Prime Minister's prerogative powers.

3.2 Legal Reasoning

The court's legal reasoning centered on several pivotal points:

Justiciability of the Prerogative Power: Drawing from Miller, the court acknowledged that the existence and extent of prerogative powers are inherently justiciable. However, challenges based on political questions, such as the Prime Minister's intent or manifesto promises, fall outside judicial purview.
Application of the EU (Withdrawal Agreement) Act 2020: The court highlighted that the Act provided domestic legal mechanisms to implement the Withdrawal Agreement, binding the Prime Minister and the government to adhere to its terms unless amended by subsequent legislation.
Timing and Procedural Grounds: The appellant's application was deemed "substantially out of time," undermining the request for extending judicial review proceedings.
Parliamentary Sovereignty: Emphasizing the principle that Parliament holds supreme legislative authority, the court noted that any changes to the Withdrawal Agreement would require parliamentary action, not unilateral executive decisions.

The amalgamation of these legal tenets led the court to conclude that the appellant's challenge lacked merit both procedurally and substantively.

3.3 Impact

The judgment in JR83 (No 2) reinforces the judiciary's stance on the separation of powers, particularly delineating the boundaries of executive prerogative in treaty ratification. Key implications include:

Affirmation of Executive Authority: The ruling upholds the Prime Minister's authority to ratify treaties within the confines of established legislation, barring parliamentary intervention.
Judicial Restraint in Political Matters: By declining to entertain the appellant's challenge, the court underscores its reluctance to engage in disputes rooted in political intent or manifesto commitments.
Reinforcement of Parliamentary Supremacy: Any deviations from the Withdrawal Agreement necessitate parliamentary action, ensuring that significant policy shifts undergo democratic scrutiny.

Moving forward, this judgment serves as a precedent for similar challenges, delineating the judiciary's role in mediating disputes over executive actions vis-à-vis legislative mandates.

4. Complex Concepts Simplified

4.1 Prerogative Powers

Prerogative powers are historical powers held by the Crown (executive branch) that are now exercised by government ministers. These include powers like issuing passports, declaring war, and ratifying treaties without requiring direct parliamentary approval.

4.2 Judicial Review

Judicial review is a process by which courts assess the legality of decisions or actions taken by public bodies or officials. It ensures that such actions comply with the law, including principles like fairness, reasonableness, and adherence to procedures.

4.3 Justiciability

Justiciability refers to whether a particular issue is appropriate for court review. Some matters, especially those deemed purely political, are considered non-justiciable, meaning courts will not intervene.

4.4 Parliamentary Sovereignty

Parliamentary sovereignty is a fundamental principle in the UK constitution, asserting that Parliament is the supreme legal authority. It can create or end any law, and no other body can override its decisions.

5. Conclusion

The Court of Appeal's decision in JR83 (No 2) [2021] NICA 49 reaffirms the established boundaries between the executive and legislative branches, particularly concerning treaty ratification and prerogative powers. By declining the appellant's judicial review, the court emphasized the limits of judicial intervention in politically charged matters and upheld the sanctity of parliamentary sovereignty. This judgment not only clarifies the extents of executive authority in international agreements but also underscores the judiciary's role in maintaining the delicate balance of powers within the UK governance framework.