Sarah Kay, human rights lawyer
Brexit has not been kind on
Northern Ireland. Then again, it was never meant to be. Five years after the
referendum, almost to the day, the High Court in Belfast released a decision
of intense political nature, with strong echoes of Miller 1, concerning a legal
challenge to the Northern Ireland protocol to the withdrawal agreement.
Northern Ireland is often described as sitting on a political powder keg, which
was on the brink of exploding during the Easter riots. Egged on by political
division and the ever so difficult nature of Northern Irish sense of
belonging(s), Brexit managed to fulfil the one expectation everyone had
predicted: expose every systemic failure.
The oral arguments, presented on
behalf of two main applicants - Clifford Peeples, objecting to the
establishment of a border in the Irish sea, and unionist members including (now
former) First Minister Arlene Foster, opposing the Protocol itself as damaging
a unionist position by furthering a separation of Northern Ireland from Great
Britain, often were nonsensical. Pushing forward that the European Union was
akin to the Vichy regime in its “occupation” of Northern Ireland has no place
in a courtroom. Stating that Brexit was never debated in Parliament was simply
and painfully inaccurate - and immediately rebuked by Lord Justice Colton (“It
was not only debated in Parliament, but outside of Parliament, too, and for
some time”, he replied during the hearing). For purposes of time, and clarity,
this will focus on two important points of contention.
Acts of Union 1800
As my esteemed colleague Anurag
Deb helpfully
pointed out in a thread, every single point is politically contentious.
Returning to the Acts of Union shows that the core focus would not just be the
Withdrawal Agreement and the “Northern Irish backstop”: it was the
constitutional existence of Northern Ireland. The question was whether the
Protocol overrides the Acts of Union. The decision relied heavily on the very
nature of constitutional statute and precedent laid by the Supreme Court. The
opposition to articles 6 and 10 of the Acts of Union do not relate to the
access of goods and services from Northern Ireland to Great Britain, but from
Great Britain to Northern Ireland. The imbalance, that would have been fixed by
the Internal Market Bill (in its original form), tips the scale in favour of
the EU market. It is worthwhile at this stage to highlight that the
implementation is still in progress, therefore leaving some unknowns at this
stage of a judicial review. But the decision stands: the Protocol in itself
does not create those tariffs, rather provides for payments of tariffs to be
made if there is a risk of goods being diverted to the EU (see para. 56 of the
judgement)
We then reach the issue of
hierarchy of statutes in matters of constitutional standing: the impact of
Miller 1, in this situation, can’t be overstated. To declare a constitutional
statute unlawful, in the event of conflict, one must understand how said
statute came into force. The Protocol was itself negotiated as part of the
Withdrawal Agreement 2019, and whilst treaties are not up for review, this is
where parliamentary sovereignty comes to assert its fundamental nature: the
very approval of the Withdrawal Agreement and all appendices therein by
Parliament; those issues were effectively considered, at large, by Parliament,
over the course of several votes. Resting on the “forever” qualifier in the
Acts of Union omits that the United Kingdom has known various iterations since
1800, due to claims of independence, least of them the emergence of a separate
Irish Free State in 1922. There was no loss to be expressed in the fight for
self-determination in Ireland. The Acts of Union must then be inclusive of the
nature of partition. It has not escaped commentators that this year marks the
centennial of said partition.
Good Friday Agreement and fundamental rights
In the very early days following
the 2016 referendum, the question as to whether Brexit would breach the Good
Friday Agreement (GFA) was raised, and would continue to be raised during
negotiations. The European Union reiterated at every given turn that it would
never compromise on the Northern Irish peace process, which led to the need for
the backstop. Both sides, in this case, argued that they brought their position
in order to protect the GFA. The argument over the Article 3 of Protocol No. 1
to the European Convention on Human Rights, helpfully referred to as A3P1,
poses the difficult question of how the European Union could continue to
implement certain laws and Directives in and to Northern Ireland, without
Northern Ireland having access to direct representation in the European
Parliament.
The hearing saw many extremely
unhelpful parallels. The Vichy analogy notwithstanding, the appellant went as
far as to push a US analogy, reproducing the “no taxation without
representation” motto. It had been presented several times in Stormont that the
Protocol would lead to a diminution of voting rights. The Court considered that
the negotiations, especially on future relations between the UK and the EU,
would be made in the presence of MPs - that Northern Ireland can vote for in
addition to its MLAs. The long debated “democratic deficit” is a political
position for which the Court might be later asked to revisit this judgment,
should it be appealed. It was considered through the Fourth Recital of the
Protocol, highlighting the importance of ensuring there is no diminution of
rights arising from the withdrawal agreement, now an interpretation on the
interplay between legal and political issues, a perfect summary of this case.
The Court considered that the constitutional
nature of Northern Ireland was not changed in the absence of a referendum -
which is provided for in the GFA under the principle of consent. The GFA is not
incorporated into domestic law. The Court further notes that, generally, the
arguments are opposing the arrangements made under the Withdrawal Agreement,
rather than the Protocol itself. Perhaps this is the one element that is more
widely misunderstood: the Protocol protects the GFA, but does not seek to
incorporate it into domestic law. The Protocol is a shield between the
Withdrawal Agreement and the GFA. It is therefore very possible this case could
be considered a proxy for directly addressing the Withdrawal Agreement. Remorse
could be worse than regret, as one MP - Ben Habib (Brexit Party) voted for the
Agreement, and is now party to this case. The grievances should then be
replaced outside of the courtroom and into the way the arrangements are being
negotiated politically, outside of the scope of judicial review, and into the
political arena.
Judicial review was refused on all grounds presented to the Court
This
decision is not of strictly constitutional interest, but then, when is public
law ever just a matter of legal arguments in courtrooms held in remote
locations, never to be accessible? This decision - and the motivation behind
the application for judicial review - is about identity. In a region where
nothing is as contested, conflicted, and tested on a regular basis, it is
unsurprising the decision was met with attacks on the judge, Lord Judge Colton;
on the barristers presenting the arguments, including former Attorney General for
Northern Ireland, John Larkin QC; and by large misinterpretations of the
Protocol.
It is July, and protests and
riots over the DUP’s interpretation of the role of the Protocol have already
led to threats of violence, threats of instability, and threats of attacks
against anti-Brexit figures in Northern Ireland. The Protocol, aimed at, by and
large, lessening the intense blow Theresa May’s hard Brexit would have
inevitably inflicted upon Northern Ireland. The grievances aimed at the
Protocol are two-fold: one, they misunderstand that all those concerns were not
created by the Protocol, but by Brexit itself. The DUP, having allowed Theresa
May to remain in power by entering into a confidence arrangement with the
Conservatives, holds little political legitimacy to now oppose the consequences
of May’s policies. Two, it is about the very nature of the presence of Northern
Ireland as a devolved region, part of the United Kingdom. Whilst not fully
phrased as such, the fear of a reunified Ireland - actively discussed and
campaigned for since summer 2020 - feels like a death toll for unionism. The
Protocol is a protective shield between the Good Friday Agreement and
Photo credit: via Wikimedia Commons
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