Maybe we Like the Misery: The Culmination of the Northern Ireland Protocol Litigation

 

Colin Murray, Professor of Law, University of Newcastle

Photo credit: ChrisVTG photography, via Wikicommons media

 

In October 2019 Boris Johnson’s Government concluded a Withdrawal Agreement with the EU which included a version of the Northern Ireland Protocol based on high alignment for rules applicable to goods between Northern Ireland and EU law. No comparable arrangements covered goods rules for Great Britain. In January 2020, Westminster enacted legislation to give effect to this deal. At this point, with the Trade and Cooperation Agreement still to be negotiated, the UK Government could have made a concerted effort to conclude a high alignment deal with the EU, in particular in areas like plant and animal products (covered by extensive SPS rules). Instead, it concluded an Agreement focused on avoiding tariffs or quotas which would generate substantial regulatory barriers to trade in goods, including between Great Britain and Northern Ireland, as soon as the Brexit transition/implementation period ended.

 

Knowing this crunch point was coming, it negotiated grace periods of a few months to let traders adapt to the new regime. Unsurprisingly, this arrangement brought with it major upheavals with potentially severe impacts for the small and peripheral economy of Northern Ireland. Two routes lay open to the UK Government. Further cooperation with the EU through the Withdrawal Agreement’s technocratic mechanisms (especially the Specialised Committee on the Protocol, feeding into the Withdrawal Agreement’s overall Joint Committee) to mitigate the impacts of the Protocol, or confrontation and an attempt to re-write the Protocol’s terms. In the two years that have followed, there has been a lot of the latter and very little of the former, with the oft-stated reason being the UK Government’s belated acknowledgement that Unionist sentiment in Northern Ireland was opposed to the Protocol’s terms.

 

At the heart of Unionist concerns over the Protocol is the ideas that it treats Northern Ireland so differently from Great Britain in terms of goods that it weakens its place within the United Kingdom. There are a number of strands to this argument; that parts of the Act of Union are impacted by the operation of the Protocol, that there is no cross-community consent to its operation, in breach of the Belfast/Good Friday Agreement of 1998, and that Northern Ireland is left subject to EU laws over which it has no say. All of these complaints were bundled together into the Allister litigation. This challenge has been rebuffed by the High Court and the Court of Appeal, but has been sustained in the hope that something different would come to pass in the Supreme Court. It has left the UK Government playing two tunes; brandishing Unionist concerns as the mainstay of its efforts to have the implementation of the Protocol reworked, but resisting them in the courts.

 

This is was always the high-stakes nature of the legal challenge. The constitutional concerns over the Protocol might have considerable rhetorical pull with Unionist voters. But as soon as a court is asked for final determination on these questions, politicians can find the rug pulled from under their feet. And now that the UK Supreme Court has rejected the Allister challenge, that outcome matters. It will be raised every time Unionists attempt to question the Protocol’s compatibility with Northern Ireland’s status as part of the UK.

 

In meeting that challenge, the Supreme Court responded with the deadest of dead bats. There would be no rolling debate over the nature of the UK Constitutional order across multiple judgments, or even a special enlarged panel for the hearing (which might have been expected given the issues at stake). This judgment is no Jackson or Miller. Instead, Lord Stephens, Northern Irelands’ judge on the Court, issued a judgment with which the other four justices simply agreed, and largely said “I agree with what the Northern Ireland Court of Appeal said”. It is a marker of just how fraught the debate around Brexit and Northern Ireland has become that the issues around interpreting statutes with significant constitutional statutes can be reduced to the following statement (at [66]):

 

The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.

 

This is none-too-subtle code for the Court actively avoiding engaging in such debates in these circumstances. Whereas the lower court judgments contain important analysis of just what we should make of Northern Ireland’s legal order after Brexit, Lord Stephen’s wraps up the issue of the conflict between constitutional statutes remarkably quickly (also at [66]):

 

Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament. Furthermore, the suspension, subjugation, or modification of rights contained in an earlier statute may be effected by express words in a later statute. The most fundamental rule of UK constitutional law is that Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme.

 

Thus, for as long as the Protocol applies, the will of Parliament is that Article VI of the Act of Union should operate in a modified way. This amounts to a rolling back, even if not fully discussed, of the potential of the “constitutional statutes” doctrine as articulated in cases like Thoburn. There is no need for Parliament to expressly acknowledge that its new legislation will affect constitutionally significant statutes, and it is able to do so in the most general of terms, provided that the impact is clear. And no one, least of all the appellants, can reasonable claim that the impact of the Northern Ireland Protocol came as a surprise, when they were campaigning against it vociferously at the time the 2020 Act was enacted. The current Supreme Court continues its opposition to any legal doctrine which it sees as a constraint upon the will of Parliament. Dicey would be thrilled.

 

Adopting some of the language favoured by the appellants, Lord Stephens concludes (at [68]) that ‘the subjugation of article VI is not complete but rather article VI is modified in part. Furthermore, the subjugation is not for all time as the Protocol is not final or rigid so that those parts which are modified are in effect suspended.’ But make no mistake that the Court is saying that this outcome was not, in short, the malign work of some foreign power, but the result of an Agreement willingly concluded by the UK Government and ratified by Westminster. The input of Parliament into the process was all important in this account.

 

The Allister litigation was therefore tilting at windmills, with the Supreme Court never going to conclude that the Act of Union was somehow substantively entrenched, in the face of the working of parliamentary sovereignty within the UK Constitution. The Court is, here, giving itself the maximum possible wiggle room in light of the delicate state of the Protocol. If the present Parliament wants to enact the Northern Ireland Protocol Bill, and fail to give full effect to the UK’s commitments in the Withdrawal Agreement, the Court is signalling that it would be unwilling to stand in the way. But the judgment also reflects the reality that the Protocol’s operation might well be modified as a result of the UK Government’s ongoing talks with the EU, and that any such outcome is not the basis of a constitutional dispute.

 

The other operative elements of the judgment are even more curt. Lord Stephens simply repeats paragraph 135 of Miller; the principle of consent under the 1998 Agreement relates to Northern Ireland’s status as part of the UK; it has no ‘wider meaning’ (at [84]). And as for the modification of proceedings in the Northern Ireland Assembly and the absence of a cross-community consent vote around the continuation of the Protocol’s trade terms, there was no deep evaluation of the limits to cross-community consent under the 1998 Agreement. Parliament had provided the necessary power to give effect to these arrangements in section 5 of the European Union (Withdrawal Agreement) Act 2020, and that was good enough for the Supreme Court (at [108]).

 

For all of the attention devoted to Allister, perhaps the more significant recent decision is that of the Northern Ireland High Court in Rooney. Here, the Court found that efforts by the DUP’s Minister for Agriculture, Edwin Poots, to prevent the imposition of any new checks, required by the Official Controls Regulation (built into the Protocol, because Northern Ireland was now the boundary point for the EU Single Market for goods), on goods movements from Great Britain to Northern Ireland to be unlawful.  

 

The Minister, and his department within the Northern Ireland Executive, was subject to a statutory obligation under section 7A of the European Union (Withdrawal) Act 2018 to implement the checks on goods required by the Protocol.  As Colton J bluntly asserted, at [179]: ‘the UK is not to be treated as a unitary state for the purposes of OCR checks coming from GB into NI. This textual analysis is entirely consistent with the purpose, intention and objective of the Protocol itself’. This decision is the product of Allister (indeed, the Northern Ireland Court of Appeal’s reasoning in Allister, which the Supreme Court affirms, is quoted extensively in the decision). This marks the reality of parliamentary sovereignty as recognised in Allister. The UK’s own internal market can be abridged by special arrangements put in place for Northern Ireland where Parliament has accepted this state of affairs. And the courts are clear that this is what happened in 2020.

 

In the aftermath of the Rooney judgment, the UK Government laid down Regulations to authorise the infrastructure necessary to fulfil the OCR commitments, providing an opportunity to build trust amid the ongoing talks over the Protocol. We appear to stand on the cusp of a deal being agreed over the mitigation of the Protocol’s terms. Under the leaked details, a differentiated approach for checks on goods bound from Great Britain to Northern Ireland (as opposed to those moving on to Ireland, and with it the wider EU Single Market) will allow goods regulations to be altered in Great Britain without increasing barriers to trade across the Irish Sea. It will remain a counter-factual scenario whether substantially the same terms could have been reached through the Withdrawal Agreement’s Committee processes. Instead, the same high-tension approach that has characterised the whole Brexit process has carried on into the spat over the Protocol’s implementation, with disastrous consequences for the workability of power-sharing in Northern Ireland.  Maybe we just like the misery. For all the emphasis on brinkmanship, however, this progress has only been made after the UK fulfilled data sharing commitments on goods movements across the Irish sea which were the logical precondition of a more risk-based approach to managing the Protocol’s trade arrangements. Other courts are being left to operate Northern Ireland’s new arrangements in ways that the desiccated reasoning in Allister only hints at.

 

But perhaps this is where the real significance of the Allister decision comes in. Having spent two years whipping up Unionist concerns over the Protocol’s impact on the 1998 Agreement to aid its Protocol stand off with the EU, the UK Government can use the handily-timed judgment to face down any Unionist concerns about the deal. In the weeks ahead we are certain to hear that the Protocol is, and always has been, entirely compatible with the constitutional order. And all that will be left is the impression that Conservative ministers are taking advantage of the Allister litigants. None of which, of course, is likely to make the restoration of power sharing any more likely in the near future, which is very much the collateral damage of this mode of EU-UK relations. Just before the case was decided, the Northern Ireland Office snuck out the news that the Secretary of State would not be calling fresh Assembly elections and that the current form of quasi-Direct Rule would be continued. Whether they like the peculiar misery of dysfunctional governance or not, the people of Northern Ireland would appear to be stuck with it.