NI Attorney General on post-brexit future: “not one word or phrase in the Belfast Agreement” would be affected

There might be another, somewhat related, reason why Sinn Féin delegated their now-backbench MLA, John O’Dowd, to front the party’s support for the High Court legal action against Brexit – as a party of the NI Executive they may have seen legal advice from the Attorney General for Northern Ireland, John Larkin, QC.

Earlier reports seemed to suggest that, having “written to the parties indicating his belief the cases raise a devolution issue around constitutional arrangements“, and the applicants subsequent agreement to a notice of devolution to allow his participation in the hearing, the NI Attorney General would be supporting the MLAs position.  That doesn’t appear to have been the case.

We may have to wait for the court ruling to see more details of the NI Attorney General’s submission, and it’s worth noting that the NI First and deputy First Ministers appear to have declined the invitation to attend the hearing, but here are the reports I’ve been able to find.

 

From the BBC report

On Wednesday afternoon, the court heard from Attorney General John Larkin, QC for the NI Executive, who said the Good Friday Agreement put no obstacle in the way of an EU withdrawal.

He asked if the Belfast Agreement could work if any of the players were not members of the EU.

“The answer is inevitably yes,” he said. “We already have that.”

He cited the Isle of Man, Jersey and Guernsey, none of which are in the UK, or the EU.

And the Belfast Telegraph

Stormont’s chief law officer, Attorney General John Larkin QC, also took an opposing stance to the MLAs involved in the litigation.

Looking to a post-Brexit future, he argued that “not one word or phrase in the Belfast Agreement” would be affected.

Mr Larkin also pointed to the examples of the Isle of Man, Jersey and Guernsey – none of whom are in the UK or EU – to back his case that the peace treaty can still work once the UK leaves.

Counsel for the NI Secretary of State addressed the use of Royal Prerogative, from the News Letter report

Counsel for the Secretary of State responded [to David Scoffield QC – who is representing Sinn Fein, the SDLP, Green Party and Alliance Party leader David Ford (acting personally), as well as several unspecified human rights groups] by insisting the Government is legally entitled to use the royal prerogative to carry out the people’s will to get out of the EU.

He described the power as “common currency” in making and withdrawing from international treaties – pointing out that it was also the method used to join the EU.

Rejecting claims that Parliament is being sidestepped in the process, the barrister said the legislative body will be involved in any law changes resulting from Brexit.

According to his case the 1998 Northern Ireland Act created no substantive legitimate expectation that its people will be consulted on before quitting the EU.

He also attempted to rubbish arguments that a withdrawal would damage the Good Friday Agreement by stressing the Government remains committed to the peace process.

Did the NI Executive seek, or receive, legal advice from their chief legal adviser, the NI Attorney General, on this issue?  If not, why not?  Those are rhetorical questions, btw.  Details of such legal advice to administrations in the UK, and elsewhere, are not usually made public.

 

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  • chrisjones2

    Why not?

    Because international relations are not a devolved matter perhaps?

  • Kevin Breslin

    It’s very difficult for many here to accept John Larkin’s legal competence anyway.

    The argument that no word of the document would be affected despite at least a couple of references to the European Union and despite there is a cross border body set up to deal with cross-border European funding seems an incorrect statement of fact and a disingenuous statement of law.

    Certainly Northern Ireland needs a European dimension to it, and I believe this was effectively an unwritten Strand Four relationship, after all being trapped between GB and ROI in its outlet, when there’s a great big continent not so far away from it.

    Broader Horizons have been very good against insular identity isolationism.

  • Croiteir

    And how many times has he been proven wrong in his assessment? He is absolutely correct here. Nationalists are totally and utterly deluding themselves if they think that Brexit can be stopped by anything in the GFA – or the Northern Ireland Act.

    He is a very capable lawyer. And he is correct here.

  • Korhomme

    How independent is the AG? (And by AG, I mean the office of AG and not the individual.) He advises the Executive; but in what way is his advice independent? Is it his role to maintain the status quo and not to go beyond that?

  • Reader

    Korhomme: Is it his role to maintain the status quo and not to go beyond that?
    The status quo being membership of the EU, of course…
    But no – the Attorney General’s role is to give legal advice to the government.
    If one was to suspect him of being a bit naughty in his role, I would initially have suspected him of Remainer sympathies. If so, he is a Remainer who has seen the writing on the wall.
    The simplest interpretation is that he is just doing his job.

  • Kevin Breslin

    He’s actually quite wrong in what he says to the Belfast Telegraph, there a multiple references to the European Union within the document, and there is an EU specific cross border body. So he’s got to be clear about what he means by “not one word” when the words are clearly there.

    I should also remind you that one legal action is being carried out by a Protestant Unionist Victim, and the other one is being carried out on a cross community basis.

    The main purposes of these cases is to safeguard Northern Ireland against the abandonment of statutory obligations by the United Kingdom both in terms of human rights commitments and in terms of guaranteeing that the Strand 2 commitment to not interfere with EU strategic cross border investment between Northern Ireland and Republic of Ireland.

    http://www.seupb.eu/Home.aspx

    It interesting to note that non-EU Norway has Special EU projects, as yet there is no guarantee the UK does the same.

    http://ec.europa.eu/regional_policy/en/atlas/programmes/2014-2020/Territorial%20co-operation/2014tc16rfcb016

  • Croiteir

    Stop that – it does not suit the liberal analysis.

  • Croiteir

    Those links serve nothing to your argument. Larkin is still absolutely correct, leaving the EU does not affect the agreement. It will still stand.

  • Newton Emerson

    The cross border body for EU funding is not mentioned in the GFA – no specific body is. There just have to be “at least six” bodies, for subjects picked by the north south ministerial council. “Relevant EU programmes” are on a list of suggestions, but Brexit just means non-border NI funding might not be relevant.
    All other mentions of the EU are equally incidental IMHO – except possibly the preamble about both state parties being EU partners. Although that looks pretty debatable too. The judge in this week’s McCord JR didn’t sound too impressed by it.

  • Croiteir

    Absolutely correct, northern nationalists are living in a fantasy land as far as this is concerned, they are putting the cart of administration of EU funds and bodies before the agreement horse.

    The preamble which mentions the EU is precisely that, a preamble setting out the desire for closer relation in which the joint membership of the EU was mentioned, but it is not dependant on it and it is not part of any agreement.

  • Newton Emerson

    There’ll still be “relevant” EU programmes post Brexit, so it won’t have to be abolished.

  • Kevin Breslin

    The Belfast Telegraph highlights that legal interpretation highlight this point is disputed.

    In closing submissions today David Scoffield QC suggested provisions within the Northern Ireland Act could become “a dead letter”.

    Referring to the impact on devolution, he added: “This is not a case of a mere procedural defect.

    “There’s been a complete failure on the part of the Northern Ireland Office to undertake any analysis on the issue.”

    Given the noise made by the DUP over the “Separation of Powers” between the legislative and judicial branches of government there is a serious question about using royal assent. The DUP long in their Paisleyite Tradition also held onto the political need for respecting the Self-Determination of the people of Northern Ireland.

    So as well as consistency in statutory obligations from the UK government, we will need to see if the DUP have any principled belief that Northern Ireland’s own self-determination requires a principled intervention against the Full English Brexit rather than a mitigation strategy.

    https://uploads.disquscdn.com/images/bc84e1b610f968ad5a522ea341494ae9b6b49979b4deb12a9be8481b62f5d218.png

    https://uploads.disquscdn.com/images/78d13db268f12a79d6f454454d864772f9290203f340648e364a0a72e53fe2cd.png

  • Kevin Breslin

    Sorry I thought the fantasy land was the one where Turks and Migrants were all going to come in and kill us all, but the UK would get £350 million on the NHS if just voted Leave in order to decide to stop them.

    I mean if offered that much money for racism, could you blame people for looking at migrants a little differently?

  • Kevin Breslin

    The Good Friday Agreement does mention the European Union. Even if it were just incidental, the terms not one word or phrase in the Belfast Agreement would be affected is clearly mistaken.

    Indeed Brexit risks putting both governments off the hook.

    https://uploads.disquscdn.com/images/78d13db268f12a79d6f454454d864772f9290203f340648e364a0a72e53fe2cd.png

  • Croiteir

    If only it did, I would be so happy. But it will not. Consent in the GFA is nothing more than the unionist veto repackaged. Partnership is nothing more than the British putting some administrative flesh to the consultative arrangements in the Anglo Irish Agreement. Do you really believe that it allows Ireland a say in English foreign policy?

  • Jollyraj

    Well, I’m glad that’s settled. To listen to some of the more shrill members of the nationalist communuty on here, you’d have thunk Brexit would be the end of civilization as we know it in the western world.

    Mind you, if you’re the sort of chap (Shinners in particular are prone to this) who thinks everything from being stuck in a traffic jam, the price of fish fingers or the chance of rain in the afternoon is a “grave threat to the peace process”(TM) I suppose the hysteria was at least congruent.

  • Croiteir

    Kevin – I posted that earlier today to explain why one word of the agreement would not be affected. That is not part of the agreement, read below where it mentions the EU, the bit that states have agreed as follows. It does not say Has agreed as above. It is a mere preamble. It set the scene. It does not even say that the agreement depends on the EU or its membership.

  • hotdogx

    Of what importance is the opinion of another British appointed unaccountable viceroy!

  • Croiteir

    I agree that that was a fantasy too, but appealing to anothers fantasy to justify your own is not the best defence you can muster.

  • Surveyor

    Remind us again who’s brought this case to the courts Jolly?

  • Katyusha

    So how should we interpret the preamble in hindsight, Croiteir? Should we ignore it? Or amend it? Or simply acknowledge it as a remnant of a bygone age, with no relevance to the present?

  • Kevin Breslin

    Brexit just means non-border NI funding might not be relevant.

    Well Newton, you’ve made the mistake of trying to define what Brexit means, and the fact is no one knows what Brexit means that’s largely why there is a test case being used to acquire guarantees that the Good Friday Agreement will not be undermined.

    Perhaps the test case is premature and there will be a conflict from after the UK actually leaves the EU, but the use of Royal Prerogative to pass laws which could change the terms of the Good Friday Agreement without consent at the very least will reaffirm people that their suspicions of the UK’s government’s intentions here are falsely attributed.

    Also on this effectively and ironically, while it is in no way covered by either court case or the Good Friday Agreement, The EU INTERREG funding between Scotland and Northern Ireland can be affected.

    Ah … Democratic Unionist Party, saving across the island investment linking us to ROI while simultaneously killing “across the islands” investment linking us to GB.

    Unionism eh?

  • Kevin Breslin

    Two Words European Union they are affected under the Letter of the Law, and it’s the Letter of the law that matters.

    How much of the Good Friday Agreement would be left intact if the document can be treated with the contempt that it is simply a bunch of dead letters?

    Surely in the Spirit of co-operation between their countries as friendly neighbours a bilateral agreement between the two countries to amend the above Appendix would have to be made.

    Larkin was great for using the “Letter of the Law” on other matters he has political support for, he should respect the “Letter of the Law” on matters he has politically driven objections to as well.

  • chrisjones2

    “Brexit definitely goes against the spirit of the GFA however”

    No it doesn’t

    “The deal was struck in the context of Anglo-Irish cooperation that was built through European partnership”

    Sorry but that is nonsense. It was purely a British Irish deal with support from the USA. the Eu did not figure at all at any stage. And the UK can do what it likes within NI within the treaty – NI is recognised as its territory

  • chrisjones2

    Its an utterly contrived argument without merit. I hope he awards costs and denies legal aid

  • chrisjones2

    Thats just nonsense and as valid as suggesting that the phrase “Printed by her Majesty’s Stationery Office” then also part of the treaty?

  • chrisjones2

    Its not undermining the peace because you disagree with it. Now please stop this or we will have to ask Mummy to take the Internet away

  • chrisjones2

    “It’s very difficult for many here to accept John Larkin’s legal competence anyway.”

    I suggest you go and tell him that and dont rely on Micks Cheque Book to protect you

  • chrisjones2

    Want to bet what the judge makes of that?

  • Kevin Breslin

    The test case is a reality now, any attempt to have the use of royal prerogative to undermine the Good Friday Agreement will either be stopped in law or parliament if anyone attempt were to exist.

    Prevention is better than Cure.

  • eamoncorbett

    Pardon my stupidity, but I thought the agreement was about relationships within NI , North/South, and East/West . Take NI first already disagreement on Brexit approach between SF and DUP ,one for other against , North/South uncertainty regarding status of border with right wing Tories urging tough immigration laws . East/West probable passport and customs controls for ROI citizens and maybe identity checks for NI people depending on talks about travel to and from Britain between UK and EU. I would say that is a negation of both the spirit and ultimate goal of the GFA which is closer ties and friendships within these islands.

  • eamoncorbett

    Pardon my stupidity, but I thought the agreement was about relationships within NI , North/South, and East/West . Take NI first already disagreement on Brexit approach between SF and DUP ,one for other against , North/South uncertainty regarding status of border with right wing Tories urging tough immigration laws . East/West probable passport and customs controls for ROI citizens and maybe identity checks for NI people depending on talks about travel to and from Britain between UK and EU. I would say that is a negation of both the spirit and ultimate goal of the GFA which is closer ties and friendships within these islands.

  • Reader

    Surveyor – It’s in the article: “David Scoffield QC – who is representing Sinn Fein, the SDLP, Green Party and Alliance Party leader David Ford (acting personally), as well as several unspecified human rights groups”

  • eamoncorbett

    Yes it will stand ,but when you pour water in to whiskey it dilutes it , similarly when agreements get diluted for whatever reason they become weaker , already we have the battle a day in Stormont , DUP telling lies on its position on the border , ask Nigel if he wants a soft border and then there’s SF , they see an opportunity here based on the referendum result . The bedrock of the GFA has been the 2 governments , the closer ties and the unanimous approach adopted since 98 . Remember all it needs if for one or more party to disengage and there is no agreement.

  • Jollyraj

    Spads?

  • babyface finlayson

    Would anything substantially change, if we found ourselves where we were before the GFA?

    A new agreement would have to be reached.

    It would have to involve all the same parties.

    It would presumably be based on some kind of devolved power sharing arrangement with a provision for a referendum on the constitutional question at some time (possibly the criteria might be made clear this time round) in the future.

    I can’t see much to be gained by any player in pulling down the GFA and then putting it back together again with one piece (the EU ) missing.

  • lizmcneill

    Was it Villiers who said there definitely would be no border controls in the event of Brexit, cross her heart?

  • lizmcneill

    Hey, the undead have hearts too!

  • babyface finlayson

    Neil
    Yes that might work.
    Might not
    Anyway perhaps I am being complacent but I just can’t see any new deal being much different from the old one.
    You can include me in that ‘our’ if you like, though I have no great zealotry for nationalism.
    I’ll skip the communal micturation thanks.

  • Croiteir

    I just look on it as the waffle and guff of diplomacy, let me paraphrase it thus.

    Looksie, we are great mates, sure we are in the EU the gather and all and we are gettiig on great. Now we got them northerners to agree to a new Stormont and all we should not have to worry about it again so we will agree to the following.

    And that is all it is. The waffle to justify their agreement.

  • Croiteir

    But they are not undermining the agreement. That would need the acceptance of the Irish govt – to do so would be abreach of international law and the courts in Belfast would not have the competency to deal with that. It would be so grave that it would justify, not precipitate as that would be ridiculous, a declaration of war. But that is taking it to extremes.

  • Croiteir

    No, the are not affected – it just merely points out that the two sovereign states were members of the EU, nothing in there at all to say that the agreement is dependant on it in any way.

  • Croiteir

    and imagination.

  • Croiteir

    The first part is – the second agreement – the important one does not. it says this – under the heading constitutional matters.

    1. The participants endorse the commitment made by the British and Irish Governments that, in a new British-Irish Agreement replacing the AngloIrish Agreement, they will:

    (i) recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland;

    (ii) recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland;

    (iii) acknowledge that while a substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people of the island of Ireland for a united Ireland, the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union and, accordingly, that Northern Ireland’s status as part of the United Kingdom reflects and relies upon that wish; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people;

    (iv) affirm that if, in the future, the people of the island of Ireland exercise their right of self-determination on the basis set out in sections (i) and (ii) above to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish;

    Now that clearly states the north is under the sovereignty of the UK and that the only consent it can give is to consent to leave the UK and join the rest of Ireland, it is the unionist veto.

    As for the rest – that was agreed by the internal parties in the north – it has no international bearing nor weight apart from both the Irish and British govts endorsement of it.

  • Surveyor
  • Kevin Breslin

    We will see what the law says, Is amhrasán mé.

  • Kevin Breslin

    Members of the UUP had signature concerns about “complete” sensations, why can’t non-unionists hold other parties to account on their obligations?

  • Jollyraj

    Uhm… judging by the OP, the challenge to Brexit on the basis of it destroying the GFA would seem to have no foundation – so I can’t see why anyone would bring it to court, if it has no hope of winning.

    Unless of course they wish to add more smoke to the nonsensical argument that Brexit disenfranchised NI voters. It didn’t. The vote was UK- wide.

  • billypilgrim1

    Brexit definitely goes against the spirit of the GFA. Indeed it has exploded a land mine underneath it.

    But it doesn’t contravene the letter of the GFA, much as I wish we could claim it did.

    The legal cases being brought against Brexit haven’t a prayer – I’m no lawyer, but even I can see that.

    Legally, Brexit changes nothing re. the GFA. Larkin is right about this.

    Politically? That’s not Larkin’s purview. And that’s a whole other story. Brexit is already transforming the politics (and economics) of these islands, and will continue to do so for many turbulent years that now stretch out ahead of us.

  • Reader

    I have already said what his actual job is. He advises the executive, he doesn’t make the actual decision.
    It seems your view is that the law should be set aside if it annoys the sort of republicans who might resort to violence. (unless you have another explanation for “undermining peace”)
    It’s a point of view that keeps on cropping up over the years, which doesn’t make it any more respectable.

  • Kevin Breslin

    What provision is going to be made for Northern Ireland passing a Royal Prerogative without even a Westminster Vote on it?

    What provision is going to be made for Northern Ireland if its own concerns about leaving the European Union are given no democratic credence whatsoever.

    Honestly I think Northern Ireland did make it very clear in their vote that losing their access to the EU and ROI, whilst simultaneously being ruled by Conservative Party paranoia and self-terrorism was not something they had consented to.

    Remember the Principle of Consent?

  • Croiteir

    Yes I do remember the principle of consent, and I have shown that it is very limited being the unionist veto with a fancy wrapper. Look at the GFa – you will see that the consent is limited to leaving the UK and joining the ROI. There is no provision for anything else there. Look at the Northern Ireland Act – it is defined therein the same.

  • Skibo

    I have to agree Crioteir. i think this is money down the drain. The only way to use the GFA to stop Brexit is to get a majority to vote for reunification.
    Even contesting the Royal Prerogative is dodgy. The RP is used for foreign affairs and treaties. After that the parliament takes over to enact the treaties into law for the country.
    It is possible however for the Parliament to ignore the referendum and not enact Article 50 at all. May not be such a dangerous action as 48% don’t want to leave and around 34% would give you a majority in Westminster.

  • Croiteir

    I do admire the belief that some, mostly nationalists have in the assertion that the GFA somehow prevents the UK govt from initiating Brexit. However that admiration is akin to the sentiment of Bosquet at the Charge of the Light Brigade.

    It is plainly written into the Northern Ireland Act that the assembly has no ability to form laws which affect anything outside the six counties.

    The GFA is no more than two separate agreements, the one that matters is the Annex which deal with the agreement between the British and Irish governments. The Agreement, as most people recognise it, between the internal parties in the six counties has no weight beyond that allowed by the two sovereign states.

    This will end in much wailing and gnashing of teeth.

    The best that the northern parties can do is beg from the British and connive with the Irish, and hope upon hope that they can pull as many irons from the fire as they can.

    Meanwhile – what retaliation is going to be served over the renaming of the boat and the appointment of the east Belfast group to distribute funds?

    And after that what measures and pressure are they going to put on the English to grant a border poll?

  • Kevin Breslin

    You’ve shown nothing.

    The Principle of Consent runs to the principle that it is the governed that determines the role of government.

    If May continues with the centralization of powers and authoritarian diktats it’ll be English peace that she’ll upset in the end … provoking Poll Tax-esque civil disobedience.

  • Croiteir

    No – you have not read, the principle of consent in this context means nothing of the sort. It is simply the consent to be governed by either the UK or Irish government. If you read the agreement an the first page of the ensuing Northern Ireland Act that will become patently clear to you.

  • Kevin Breslin

    Well basically bypassing the will of the people here on Europe will have a detrimental effect on their willing consent to effectively have their way of life changed by undemocratic decrees made in England.

    There is absolutely no reason why the method of leaving the European Union should bypass Parliament, we all know that the Queen is just a puppet, taking decisions on methodology out of the House of Commons is dictatorship.

  • Skibo

    I would assume the main argument will be built around the statement “recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status,” It is one that the right Judge may be prepared to give weight to.
    Unfortunately the statement has been formalised with “whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland;”
    I wonder could it be argued that as the possibility of the UK leaving the EU was never even considered in the formation of the Agreement, could it be argued that if it had been, it would have been included?
    It must be recognised also that the ECHR is a safeguard to the GFA so if Theresa May was to remove the UK from the ECHR, that would actually cause a bigger problem. NI cannot withdraw from the ECHR without a rewriting of the GFA.

  • Obelisk

    Forget zealotry for Nationalism. Think of it as an escape hatch from England’s rapidly putrefying political culture.

  • hotdogx

    As was said aboard the Titanic,
    There’s no problem you may return to your cabins! Meanwhile: The Brexit iceberg is beginning to tare that gash in the hull.

  • NotNowJohnny

    You said his role was to give legal advice to the Executive.

    Of course, his functions are much wider than that.

    The question is, which if his functions is he exercising in court?

    He’s not giving advice to the Executive in court.

  • Croiteir

    I concur with most of that. The argument that they never thought of the possibility of the UK leaving the EU is not one that holds much merit, in my view, as it would mean, in my view, that every negotiation and agreement would need to have a codicil for all future events and no one is able to do that.

    As for the ECHR and human rights, that also is a valid point but it also is negated by the fact that it needs to be in accordance to the ECHR and as at least one of the guaranteeing partners is still, and will be, a member of the EHR and could seek its view on any law passed by the Assembly.

  • chrisjones2

    Again that is nonsense… the EU provided ziltch

  • chrisjones2

    only if they start to murder people – as some of them have regularly done in the past

  • chrisjones2

    “It’s very difficult for many here to accept John Larkin’s legal competence anyway”

    Perhaps we could run a poll on Twitter?

    Of even leave it to the Judge who will decide

  • chrisjones2

    “the lawyers may be able to put forward literal legal crap and get away with it.”

    Thats the way the courts have always worked. Lawyers argue your literal crap. Judges make decisions

  • Skibo

    Sorry but we are going to have to disagree on the ECHR. It has nothing to do with accordance. Section 5 part b makes the ECHR a safeguard. It cannot be a safeguard if it does not apply to NI.
    The same paragraph mentions a Bill of Rights. The fact that we do not have a Bill of Rights shows that the struggle for equality is not complete yet.

  • MainlandUlsterman

    The giveaways there are “I believe” and “unwritten”.

  • MainlandUlsterman

    There are not multiple references to the EU in the GFA. I think it’s mentioned in passing in the pre-amble. That’s about it.

  • Croiteir

    see – told you so

  • Croiteir

    how intelligent was that then?