No case for interim orders in challenge to Withdrawal Agreement: judge

It would have been wrong for the court to pronounce on the legal validity of the EU Withdrawal Agreement in advance of Saturday's parliamentary debate on the merits of the agreement, the Court of Session ruled late on Friday.

Lord Pentland in the Outer House refused interim orders in a petition by Jolyon Maugham QC, founder of The Good Law Project, for suspension and interdict in relation to the Withdrawal Agreement between the United Kingdom and the European Union concluded last week, ahead of the special parliamentary debates that took place on Saturday.

The basis of the petition was that the agreement provides for Northern Ireland to form part of a separate customs territory to Great Britain, in that although in provided that Northern Ireland was part of the customs territory of the UK, it was at the same time part of the customs territory of the EU, unlike Great Britain. This was said to be contrary to s 55 of the Taxation (Cross-Border Trade) Act 2018, which makes it unlawful for the Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.

It was argued that s 55 did not allow the Government even to propose for ratification by the UK Parliament any arrangement allowing for Northern Ireland to form part of a separate customs territory to Great Britain, as this would involve the Government impermissibly having entered into an arrangement with another party to allow for such a result. Pronouncing orders would not prevent Parliament considering the matter; Parliament could decide what it should do in light of orders pronounced by the court.

In Lord Pentland's opinion the petitioner did not have a prima facie case. First, the petition was of "very doubtful competency", as the orders sought "would unquestionably interfere to a major extent with the proposed proceedings in Parliament". It should be left to Parliament to proceed in the manner and according to the procedures that it considered most appropriate in the circumstances.

Secondly, the argument regarding incompatibility with s 55 was "at best a weak one". Nothing had been put before the court to show that Northern Ireland's customs arrangements would not be treated in accordance with the express intention that Northern Ireland remain part of the UK customs territory. The arrangements in relation to the EU did not mean that it could not at the same time be part of the UK customs territory.

Thirdly, the balance of convenience was also strongly against granting interim orders. The petitioner had not persuaded the court that there was "any genuine urgency" such as to justify interim orders. It was not for the court to provide Parliament with "some kind of advance advisory guidance".

"Fourthly," Lord Pentland continued, "the petitioner’s approach fails to take account of the fact that the withdrawal agreement is at present still at the stage of being merely a draft instrument. It requires to be ratified, both at UK and EU levels. These procedures should be allowed to be followed through in line with the appropriate processes in the UK Parliament and elsewhere. It would be quite wrong and contrary to basic constitutional principles for the court to interfere with them in the way that the petitioner has proposed."

For all these reasons, the applications for interim orders were "misconceived and unjustified". Lord Pentland appointed intimation and service of the petition, and appointed answers to be lodged within seven days.

Click here to view the opinion.