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60 Churchill Square

Kings Hill
West Malling
Kent ME19 4YU
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DX 92853 West Malling

The Treasury Solicitor,
Government Legal Department,
One Kemble Street,
London
WC2B 4TS

8 February 2019

By post & email: thetreasurysolicitor@governmentlegal.gov.uk

Dear Sirs

Matter: In the matter of a Judicial Review
Our Ref: G/NAK/BRE0051

TOP URGENT

Letter Before Claim

We are instructed by a number of possible claimants, including The Right Honourable Lord
Trimble. They are concerned about the United Kingdom’s forthcoming withdrawal from the
European Union on 29 March 2019 without an agreement binding in international law. They
point to a possible solution.

This letter is drafted under the judicial review protocol in section C of the White Book, which
provides for a response within 14 days. Given the urgency of the matter, we would appreciate
a response within 7 to 14 days. No extensions of time will be considered.

Factual and legal points

Our clients take the following (factual and legal) points on no agreement:

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(i) There was, and remains, unusual political agreement, between the two communities
in Northern Ireland, that there should be ‘no hard border’. This is supported by the
UK government, and is also the position of the Irish government;

(ii) The Belfast (or Good Friday) agreement of 10 April 1998 could, and should still, be
used to address that key question in the short time remaining to 29 March 2019 (and
hopefully on to 31 December 2020);

(iii) The Northern Ireland Act 1998 made new provision for its government, by
implementing the multi-party agreement of 10 April 1998, the related British-Irish
agreement of the same date entering into force – with this statute – on 2 December
1999. Our clients refer to the strand one, strand two and strand three institutions
(including the British-Irish intergovernmental conference), their interlocking nature,
the powers and duties conferred, and the associated governing principles;

(iv) The opinion of the Attorney General of England and Wales, of 13 November 2018, is
accepted as to the future for Northern Ireland, under the current backstop – according
to the terms of the draft withdrawal agreement of 14 November 2018 and the political
declaration of 22 November 2018: (i) Northern Ireland remaining part of the EU
customs union, despite the envisaged single customs territory embracing the UK and
the EU; (ii) Northern Ireland being effectively in the EU single market for goods,
because of the emphasis upon north-south trade; and (iii) the so-called backstop
‘endur[ing] indefinitely’;

(v) Such differing arrangements within the UK would be in breach of article sixth of the
Union with Ireland Act 1800;

(vi) The Republic of Ireland, through the EU, would be exercising governmental functions
effectively, as regards Northern Ireland, through the single market and the customs
union, even while the UK remained the sovereign power; and

(vii) While the house of commons voted, on 15 January 2019, by 432 (of 650) votes to
reject the European council conclusions of 25 November 2018, the same house, on 29
January 2019, voted – the government supporting the ‘Brady amendment’ - by 317
votes to 301, to effectively support that agreement on a future occasion, if the so-
called Irish protocol was replaced with ‘alternative arrangements’ – not there
specified.

Our clients identify three possible defendants: the Prime Minister (or, if necessary, the First
Lord of the Treasury), as the person with overall responsibility for Brexit policy; the Minister
for the Cabinet Office and Chancellor of the Duchy of Lancaster; and the Secretary of State for
Northern Ireland, as the two ministers who attended the last British-Irish intergovernmental
conference in Dublin on 2 November 2018.

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Grounds

Our clients as claimants will, if necessary, allege in grounds to be drafted that:

(i) The defendants are in breach of article sixth of the Union with Ireland Act 1800, in
that – according to the Attorney General – Northern Ireland is being treated
differently from Great Britain;

(ii) The defendants are in breach of provisions in the Northern Ireland Act 1998,
providing for the interlocked government of Northern Ireland, in that no hard border
has not been put into the British-Irish intergovernmental conference for bilateral
negotiation; and

(iii) Subject to considerations of justiciability, article 30(2) of the 1969 Vienna
Convention on the Law of Treaties provides that the Belfast agreement prevails, on
the question of no hard border, even while the UK is negotiating with the EU
regarding withdrawal.

Our clients pray in aid the bilateral (non-legal) agreement, of 24 November 2018 (signed
subsequently), between the UK and Spain, regarding Gibraltar, as analogous. They believe
that the EU could have been persuaded to similarly leave no hard border to bilateral
negotiations.

The clients will be seeking declaratory relief, on a number of points, and a mandatory order
requiring the defendants, following 29 January 2019, to bring forward the next meeting of the
British-Irish intergovernmental conference, and present the Irish government with draft
alternative arrangements.

Our clients hope that the Irish government, which could well be facing no deal on 29 March
2019 as well, with the consequences that have been well aired, might join with the UK
government in a work programme to prevent a hard border, ideally in a context of an amended
agreement but, if necessary, in a no agreement context.

As detailed above and in accordance with Section C of the White Book, we look forward to
receiving a full response from you, preferably within 7 days but, by no means, later than 14
days from the date of this letter, namely by 22 February 2019.

Yours faithfully

Griffin Law

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