JR83, Re Application for Judicial Review (No 2)

Factual and Procedural Background

On 30 October 2020, the Appellant applied for leave to issue judicial review proceedings seeking a declaration that the decision of the Prime Minister on 24 January 2020 to sign the Agreement on the Withdrawal of the United Kingdom from the European Union (the withdrawal agreement), including the Protocol on Ireland/Northern Ireland (the Protocol), was unlawful. The Appellant contended that the Prime Minister did not intend for the UK Government to be bound by, adhere to, or fully implement the agreement. The High Court refused leave on the basis that the Prime Minister's mindset when signing was not a matter for the court. The Appellant renewed the application, arguing the decision frustrated Parliament's will. The Respondent submitted that the application was academic, delayed, and unarguable.

The statutory background includes the EU (Withdrawal) Act 2018, which repealed the European Communities Act 1972 and provided for Parliamentary approval of withdrawal negotiations. The EU (Withdrawal Agreement) Act 2020 (EUWAA) implemented the withdrawal agreement in domestic law, providing for recognition and enforcement of rights and obligations under the agreement. The Act also disapplied certain treaty ratification procedures to enable the Prime Minister to ratify the agreement by signing it on 24 January 2020, the act challenged.

The Appellant is a 62-year-old resident of Northern Ireland near the border with the Republic of Ireland, concerned about the consequences of a hard border. She fears the Prime Minister and Government never intended to be legally bound by the withdrawal agreement and signed it only to enable a swift UK departure from the EU without full implementation.

The Appellant's solicitor set out various matters supporting this contention, including statements by the Prime Minister and government actions such as introducing the Internal Markets Bill, which proposed unilateral modifications conflicting with the Protocol and was admitted to breach international law. Media reports and statements by government officials were cited as evidence of an intention not to comply fully with the agreement.

The Respondent relied on the agreement of the EU/UK Joint Committee on implementation issues and the conclusion of a new Trade and Cooperation Agreement, asserting the UK exited the transition period consistent with the withdrawal agreement and Protocol. The Respondent also argued the challenge was an impermissible attack on parliamentary proceedings and political decisions.

Legal Issues Presented

1. Whether the Prime Minister's decision to sign the withdrawal agreement without intending to be bound by or to implement it was unlawful.
2. Whether the Prime Minister's mindset at the time of signing is justiciable and constitutes an abuse of prerogative power.
3. Whether the application for judicial review was barred by delay or was academic given subsequent developments.
4. Whether the introduction of legislation conflicting with the withdrawal agreement frustrates the will of Parliament and is justiciable.

Arguments of the Parties

Appellant's Arguments

• The Prime Minister signed the withdrawal agreement without intending to be legally bound or to implement it fully, frustrating Parliament's will.
• The Prime Minister's mindset at signing was an abuse of power and bad faith, amounting to a deceit on Parliament.
• The introduction of the Internal Markets Bill and related government policies evidenced an intention to breach the Protocol and avoid implementation.
• Parliament was denied scrutiny and accountability as it was not given the opportunity to consider the terms on which the UK was to leave the EU.
• Delay in bringing proceedings was triggered by recent government actions and statements indicating contemplated breaches of the agreement.

Respondent's Arguments

• The evidence cited by the Appellant was insufficient to show the Prime Minister acted for an improper purpose or to frustrate Parliament.
• The UK exited the transition period in accordance with the withdrawal agreement and Protocol.
• The challenge was an impermissible attack on parliamentary proceedings, barred by Article 9 of the Bill of Rights 1689.
• The exercise of the prerogative power to ratify treaties was within legal limits and political in nature, not justiciable on the grounds alleged.
• The application was academic and out of time, with no legal basis to extend the time for bringing proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the statutory framework establishing the withdrawal agreement's domestic implementation through the EUWAA, which legally binds the Prime Minister and Government unless amended by Parliament. It rejected the Appellant's suggestion that the Prime Minister could lawfully act contrary to domestic law without consequence.

The court examined the nature of treaty ratification, noting that under the Constitutional Reform and Governance Act 2010, ratification establishes international law consent but does not itself confer domestic legal rights; these arise from implementing legislation. The court relied on the Supreme Court's ruling in the Miller case to clarify justiciability principles related to prerogative powers, distinguishing between the existence and limits of the power (justiciable) and the exercise of the power within its limits (potentially non-justiciable).

The court held that the disapplication of section 20 of the 2010 Act by the EUWAA meant the Prime Minister was entitled to sign the withdrawal agreement without further parliamentary scrutiny, provided no changes were made to the agreement. It found no legal limit on the power to ratify based on political manifesto promises, which are political rather than legal matters.

The court rejected the Appellant's contention that the Prime Minister's mindset at signing imposed a legal limitation on the exercise of the power or constituted an abuse of power. It found no basis to impose a condition that the Prime Minister disclose any intention to legislate contrary to the treaty obligations, as this would interfere with parliamentary sovereignty and the constitutional right of members of Parliament to introduce legislation.

The court also found that the introduction of the Internal Markets Bill and related public discussion did not establish unlawful behavior by the Prime Minister, nor did it provide a trigger for timely commencement of proceedings. The application was substantially out of time and raised no legal matter warranting extension.

Holding and Implications

The court REFUSED the renewed application for leave to issue judicial review proceedings.

The direct effect of this decision is that the Appellant's challenge to the Prime Minister's ratification of the withdrawal agreement on the grounds of intention and alleged abuse of power is dismissed as out of time and lacking legal foundation. The court reaffirmed the principle of parliamentary sovereignty and the limits of judicial intervention in political decisions related to treaty ratification and implementation. No new precedent altering the justiciability of prerogative powers or parliamentary sovereignty was established.