Courts should not be asked to intervene in Brexit talks, judge told

Courts should not be invited to intervene in high-level political negotiations on Brexit, a judge has been told.

Responding to a legal challenge in Belfast against a no-deal Brexit, a Government lawyer insisted the judiciary should be not asked to rule on top-level international affairs.

Tony McGleenan QC also rejected the suggestion that the Government had not taken due consideration of the potential impact a no-deal Brexit might have on Northern Ireland.

Referencing Operation Yellowhammer – the Government’s scenario planning exercise – the barrister said: “It’s apparent that the Government has considered, carefully assessed and taken provisions for the contingencies that may arise from an exit without a withdrawal agreement.”

Dr McGleenan outlined to Belfast High Court a draft affidavit written by a top civil servant on behalf of Michael Gove, the cabinet minister responsible for no-deal planning.

He said it made clear that Operation Yellowhammer, details of which were leaked to the Sunday Times last month, did not outline what was expected to happen, only what could happen in a worst-case scenario.

Dr McGleenan was responding to a joined-up judicial review case taken by three different applicants, one of them high profile victims’ campaigner Raymond McCord, against a no-deal Brexit.

They are challenging the Government’s handling of the Brexit process, arguing that exiting the EU without a deal would have a negative impact on the peace process.

The Government barrister said the course of high-level political negotiations should not be a matter for judicial involvement.

“This is high policy and the conduct of international affairs,” he said.

Dr McGleenan added: “These are not matters the court should be grappling with.”

Northern Ireland’s Attorney General also made submissions to judge Lord Justice Bernard McCloskey on what was the second day of the hearing.

John Larkin QC insisted process agreements in Northern Ireland were not dependent on the UK remaining in the EU.

Mr Larkin said the EU was referenced only once in the British-Irish Agreement – the treaty that gave effect to the 1998 Good Friday Agreement – and that was only a brief mention in the preamble.

He said that mention only referred to the UK and Ireland wishing to improve relations between their countries as “friendly neighbours and as partners in the European Union”.

“That can’t be boosted or given a steroid injection as to make it an obligation of continuing membership of the EU on one or both parties,” he said.

Mr Larkin also argued that domestic UK law could not prevent a no-deal because provision for exiting the EU without an agreement was enshrined in Article 50 of the Lisbon Treaty, which took primacy.

Also during Monday’s proceedings, Mr McCord’s lawyer, Ronan Lavery QC, told the court he had written to Government lawyers asking for an undertaking that Prime Minister Boris Johnson would comply with the vote of Parliament to delay Brexit if no agreement is reached.

Barry McDonald QC, representing another of the applicants, urged Lord Justice McCloskey, if he found in their favour, to compel the Government to abide by the law.

Referring to speculation that Mr Johnson could send two letters to the EU, one asking for an extension and the other saying he did not want an extension, Mr McDonald suggested there was an attempt to “sabotage” the will of Parliament.

“There’s an indication of an intent to subvert the purpose of the Act,” he said.

Dr McGleenan denied that was the Government’s intention.

“The Government will abide by the law,” he said.

The hearing is due to conclude on Tuesday morning.

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