Loyalist activist Jamie Bryson’s legal action against a Stormont vote on continuing post-Brexit trading arrangements for Northern Ireland is to be dismissed, the High Court has ruled.
Mr Bryson claimed Secretary of State Hilary Benn acted unlawfully by initiating the democratic consent process to maintain the Windsor Framework for another four years.
But a judge refused to grant leave to seek a judicial review after declaring the challenge “untenable”.
Mr Justice McAlinden said: “There is no arguable case with a reasonable prospect of success.”
Mr Bryson also abandoned separate attempts to stop the vote from taking place in the assembly on Tuesday.
The Windsor Framework keeps Northern Ireland inside the European Union’s single market for goods while creating an Irish Sea border requiring checks on products arriving from the rest of the United Kingdom.
Despite unionist opposition, the vote on maintaining EU trade regulations under the treaty is expected to be passed by MLAs.
Mr Bryson contended that the secretary of state violated a legal obligation to carry out a consultation on the process.
He further claimed a breach of a duty to protect Northern Ireland’s position within the UK customs territory.
According to Mr Bryson’s case, the consent process conflicts with amendments made to the Brexit Withdrawal Agreement as part of the previous Conservative government’s Safeguarding the Union pledges to restore devolution at Stormont.
Representing himself, he insisted the moves to extend the Windsor Framework have been rendered unlawful by how the secretary of state triggered the vote.
Mr Bryson repeatedly submitted that no proper reasons have been provided for the decision-making process.
“Responsibility for the democratic consent process rests exclusively with the UK government, it’s not a devolved matter,” he said.
“There’s no evidence from the secretary of state, explaining what he has done.”
At one point Mr Justice McAlinden asked if he should have waited until after the vote before issuing proceedings rather than making any attempt to “stymy” the democratic process.
“The thing that strikes me as repugnant to the separation of powers is asking the court at this stage to stop a legislative assembly conducting its business by holding a vote. It strikes me as fundamentally undemocratic,” he observed.
Mr Bryson replied that the alleged illegality would still have to be dealt with.
“It doesn’t matter what the assembly says, the process has either complied with the law or it hasn’t,” he said.
According to his case, the secretary of state had misunderstood the legal duty to consult.
“He has planted his flag on (asserting) it is not necessary, that it is merely a political desire rather than an obligation,” he submitted.
“I say that is fundamentally incorrect.”
Dealing with Mr Benn’s alleged failure to recognise Northern Ireland’s status, Mr Bryson cited an obligation within the UK Internal Market Act.
“He hasn’t referred to the customs territory at all, there’s no evidence before the court to the contrary,” he added.
Tony McGleenan KC, representing the secretary of state, described the challenge as an attempt to directly interfere with and obtain an injunction against the Stormont vote.
“That is a remarkable thing and a matter of some constitutional significance,” he stressed.
“It is constitutionally impermissible to seek what he is seeking.”
Amid judicial concerns at the “constitutional impropriety” of halting the democratic consent process, Mr Bryson confirmed he was no longer pursuing the interim relief aspect of the challenge.
Mr McGleenan further contended that part of the challenge was about a “tick box exercise”.
He told Mr Justice McAlinden: “The applicant is inviting the court to come very close to engage in the workings of the legislative assembly.
“The court should dismiss this application tonight, interim relief having been abandoned.
“This is a political argument masquerading as a point of constitutional law.”
Rejecting all grounds of challenge, Mr Justice McAlinden held that any obligation on consultation obligation rests with the Northern Ireland Executive.
“There’s nothing to indicate that the secretary of state, in compliance with his statutory duty to give notification of the start of the democratic consent process, was in breach of any mandatory consultation process.
He added: “To try to argue that the secretary of state’s decision to initiate and continue (the process) is unlawful because of the failure of the first minister and deputy first minister to meaningfully engage and organise the cross-community consultation process in advance of the motion being put before the assembly is entirely untenable.”
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