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[2] The interim orders sought by the petitioner were in the following terms: "(i)to suspend ad interim the purported agreement which is said by the United Kingdom government to have been concluded between it and the European Union and the United Kingdom government, on the basis that this agreement provides for Northern Ireland to form part of a separate customs territory to Great Britain; and

(ii)for interdict ad interim against Ministers of the Crown in right of the United Kingdom including the Prime Minster (and anybody acting on their behalf or at their request) from entering into arrangements under which Northern Ireland is to form part of a separate customs territory to Great Britain".
[8] The petitioner argue that what the Protocol seeks to do is to create what Mr O'Neill QC described as an overlapping Venn diagram in which Northern Ireland is at one and the same time both a part of the customs territory of the United Kingdom and a part of the customs territory of the European Union. By contrast, the island of Great Britain will, post-Brexit, form a part of the customs territory of the United Kingdom, but the island of Great Britain will no longer form a part of the customs territory of the European Union.

[9] Mr O'Neill drew attention to section 55 of the Taxation (Cross-Border Trade) Act 2018("the 2018 Act").  This provides as follows:"55 Single United Kingdom customs territory (1)It shall be unlawful for Her Majesty's Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.(2)For the purposes of this section `customs territory' shall have the same meaning as in the General Agreement on Tariffs and Trade 1947 as amended."
[14] Mr Moynihan contended that against the background of this statutory framework it was clearly a matter for Parliament to address its own mind to the terms of the draft Withdrawal Agreement.

[15] Mr Moynihan also submitted that the effect of an interim order for suspension would be to prevent the responsible minister from making to Parliament the statements required by the Withdrawal Acts. The agreement would have been declared void and there would be nothing that could lawfully be laid before Parliament. The remedies sought would amount to a manifest interference with the proper processes and procedures of Parliament and would prevent legitimate debate in Parliament about the terms of the Withdrawal Agreement.
[21] The issues which the court must address at this stage are (i) whether the petitioner has a prima facie case and (ii) where the balance of convenience lies.

[22] In my opinion, the petitioner does not have a prima facie case.  In the first place, the petition is of very doubtful competency.  The orders sought would unquestionably interfere to a major extent with the proposed proceedings in Parliament.  Suspension of the draft withdrawal agreement would mean that the motion for its approval could not realistically or properly go ahead as planned. I cannot see that it would be right for Parliament to be invited to consider a draft treaty which the court had suspended on the basis that it was unlawful. It is a cardinal principle of constitutional law that the courts should not intrude on the legitimate affairs and processes of Parliament. I consider that it should be left to Parliament to proceed in relation to the draft withdrawal agreement in the manner and according to the procedures that Parliament considers most appropriate in the circumstances.  

[23] Secondly, I consider that the petitioner's legal argument as to the incompatibility of the draft withdrawal agreement with section 55 of the 2018 Act is at best a weak one. The starting point, in my opinion, is the clear declaration in article 4 of the draft Protocol. That statement is closely aligned with the definition of a "customs territory" contained in Article XXIV of GATT. The petitioner has placed nothing before the court by way of evidence, averment or oral submission to show that in future Northern Ireland's trading and customs arrangements will not qualify and fall to be treated as amounting to a "customs territory" in the manner envisaged in the draft Protocol.
[26] For all these reasons, I conclude that the petitioner's applications for interim orders are misconceived and unjustified.  They have no or at best a weak prima facie case. The balance of convenience comes down firmly on the side of refusing to make the orders. I shall accordingly refuse the petitioner's motion insofar as it seeks interim orders.

[27] I shall order intimation and service of the petition and appoint answers to be lodged within 7 days.

I suspect, Maugham and Cherry won't be flapping their lips about this calumny on behalf of a sovereign parliament this week. Maybe BLACK TUESDAY?

Diversity is the key to economic and political evolution.
by Cat on Mon Oct 21st, 2019 at 04:46:39 PM EST
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