The Northern Ireland Protocol: The High Court has its say

Who knew constitutional law could be so dramatic? The High Court has dismissed a legal challenge to the Northern Ireland Protocol by several unionist politicians. The political ramifications are likely to carry us through July, a traditionally calm month in Northern Ireland.

As always when there’s a high-profile judgment, people will take what they can and use it for political capital. You wouldn’t think the unionist claimants had lost. Others seem to think the matter is settled and we should all log off.

The truth, as always, is never straight forward. This judgment does have implications for the union and unionist anger is understandable. Equally, we should avoid hyperbole. This judgment affirms the United Kingdom’s unique constitutional arrangements, rules that Northern Ireland must accept if it belongs to the union. However, there is a path to an appeal and a Supreme Court hearing.

Given the political ramifications of this judgment, an examination of its contents is necessary. Not everybody will interpret a judgment in the same way. That’s why the law is fun! But let’s be clear about what it says…and what it doesn’t.

Allister’s Application [2021] NIQB 64

The case

The Act of Union 1801. You may have heard of it. Of ‘the union’ fame, it created the legal and political union between Britain and Ireland. Its provisions are still in force today.

Article 6 of the Act of the Union states that:

“The subjects of Great Britain and Ireland shall be on the same footing in respect of trade and navigation, and in all treaties with foreign powers the subjects of Ireland shall have the same privileges as British subject.”

The legislation further states:

“and that in all treaties made by his Majesty his heirs and successors, with any foreign power, his Majesty’s subjects of Ireland shall have the same privileges and be on the same footing as his Majesty’s subjects of Great Britain.”

Enter Brexit. Rather, enter Brexit drunk and stumbling into everything you love.

The European Union (Withdrawal Agreement) Act 2020 created the Northern Ireland Protocol. Further pieces of legislation such as the Trade and Co-Operation Agreement 2021 and the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU) Regulations 2020 also regulate the Protocol.

Article Five of the Protocol states that,

“1. No customs duties shall be payable for a good brought into Northern Ireland from another part of the United Kingdom by direct transport, notwithstanding paragraph 3, unless that good is at risk of subsequently being moved into the Union, whether by itself or forming part of another good following processing.

The customs duties in respect of a good being moved by direct transport to Northern Ireland other than from the Union or from another part of the United Kingdom shall be the duties applicable in the United Kingdom, notwithstanding paragraph 3, unless that good is at risk of subsequently being moved into the Union, whether by itself or forming part of another good following processing. …”

Article 5 created the infamous Irish Sea Border. It’s caused a few problems, to say the least.

In their submissions, the applicants argued that the Northern Ireland Protocol was incompatible with Article 6 of the Act of Union. They further submitted that Article 6 has supremacy over other acts of domestic law and prevented the government from agreeing the Protocol in the first place.

There were four other grounds of challenge. I’m only going to focus on two of them in detail.

The Northern Ireland Act 98 allows votes in the Assembly to be subject to a cross community motion. S,42 creates the petition of concern.

Under the Protocol, the Northern Ireland Assembly can vote to reject or affirm the current arrangements every four years. Why? Because the EU and the British government decided that it would be great craic for us all to talk about Brexit on an endless loop until we die. So, to ramp up the fun, the Protocol vote must be carried by a simple majority. Cross-community voting doesn’t apply.

In their submissions, the applicants argued that the above provisions contravene s,42.

What about the Good Friday Agreement? The applicants argued that the Protocol was implemented without Northern Ireland’s consent, as per the Northern Ireland Act 1998.

The judgment

In respect of the Act of Union, Justice Colton concluded, quite remarkably, that:

‘it cannot be said that the two jurisdictions are on “equal footing” in relation to trade. Compliance with certain EU standards; the bureaucracy and associated costs of complying with customs documentation and checks; the payment of tariffs for goods “at risk” and the unfettered access enjoyed by Northern Ireland businesses to the EU internal market conflict with the “equal footing” described in Article VI.’

In other words, the Protocol creates a conflict with the Act of Union. This is what unionists have feared since the Protocol was created. It confirms that they’ve always suspected: that the Protocol has altered Northern Ireland’s relationship with Britain.

This is not insignificant. Nor should it be dismissed. Stephen Farry’s statement in Parliament that the Protocol is “not a constitutional issue,” is strange. Justice Colton’s words say otherwise.

Having identified a conflict with the statute, the court considered whether the conflict was lawful. Justice Colton dismissed the suggestion that the government had no power to agree the Protocol, affirming that, ‘the making of treaties is a prerogative power not readily subject to domestic judicial supervision.’

The court affirmed the decision of the Supreme Court in Miller that, ‘Parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged.’

This is where the case got interesting.

It’s a recognised principle of UK law that there are “constitutional statutes.” These are VIP piece of legislation. If they were people, they could jump the line at every bar in the cathedral quarter (you would hate them). The Northern Ireland Act 1998 is a constitutional statute. The European Communities Act 1972 (RIP) was a constitutional statute.

Justice Colton was faced with a problem. The Act of Union is clearly a constitutional statute. The legislation that underpins the Northern Ireland Protocol is also a constitutional statute. Think of the meme where Spiderman points at his doppelganger. It’s basically that.

If two constitutional statues are in conflict with one another, how should the problem be resolved?

The court concluded, firstly, that the most recent statute is to be preferred to the older one. Justice Colton stated that, “Much constitutional water has passed under the bridge since the enactment of the Act of Union.” The court also noted that, ‘There is no legal precedent whereby the Act of Union 1800 has operated to nullify a subsequent Act of Parliament.’

In fact, the court noted that a previous case taken by the Earl of Antrim in 1967 concluded that parts of the Act of Union had been impliedly repealed. In other words, certain provisions within the legislation have been repealed before without clear words.

Justice Colton concluded that:

‘“The more general words of the Act of Union 1800 written 200 plus years ago in an entirely different economic and political era could not override the clear specific will of Parliament, as expressed through the Withdrawal Agreement and Protocol, in the context of the modern constitutional arrangements for Northern Ireland.”

Justice Colton further stated that the Protocol had been considered “fully” by Parliament. Parliament legislated for the Protocol, “fully sighted of the terms and consequences of the Withdrawal Act.”

In conclusion, the court stated that the Withdrawal Agreement overrides the Act of Union. We can infer from the judgment that certain sections of the Act of Union have been repealed. However, the Act still applies and Northern Ireland remains in the union.

The Northern Ireland Act 1998

Given the conflict with the Act of Union, some have argued that Northern Ireland’s constitutional position has been altered in violation of the consent principle. Some have gone further and suggested that the judgment affirms this.

On the contrary, the judgment says the opposite. The High Court ruled that the principle of consent as expressed in the Northern Ireland Act 1998 relates only “….to the status of Northern Ireland in the constitutional context relates to membership of the UK or a sovereign united Ireland.”

The above confirms the Supreme Court’s position in Miller. In that case, the court ruled that the consent principle, does not regulate,  “any other change in the constitutional status of Northern Ireland,” other than the decision to leave the union.

If we want to talk about consent for the Protocol, we aren’t talking about the consent principle as enshrined in the Good Friday Agreement. Rather, we should talk about the political decision of the British government to pursue Brexit and the Protocol without much thought for the people of Northern Ireland.

Back to the never ending hell of voting for/against the Protocol every four years. The court stated that international treaties are, “not a devolved matter or a matter within the legislative competence of the Assembly as a matter of principle it did not require cross-community support.” In short: no cheeky petition of concerns for you.

The above is, in my view, still a political problem. Lawful or not, the government has changed the rules in the Assembly for a single vote. The further people move away from the Agreement, the more problematic things get.

 Conclusion

The judgment in respect of the Act of Union will likely form the grounds for appeal. Given the case law, the question of how to resolve conflicting constitutional statutes hasn’t been fully resolved.  There is enough meat here for the Supreme Court to chew over.

As others have pointed out, the court’s reasoning is also open to challenge. Parliament passed the Withdrawal Agreement in the space of seven hours. The government dismissed concerns raised by unionists that the Act caused problems with the Act of Union. Not a single Northern Ireland MP voted for the Withdrawal Agreement.

Was Parliament full informed about the consequences of the Act? We all read Brandon Lewis’ howler of a tweet stating that, “There is no border in the Irish Sea.”

Is all this enough to nullify the Protocol? I’m not sure.  This isn’t the last we’ve heard of this case. We could be in for a blockbuster Supreme Court hearing.

You wouldn’t think, from the reaction of certain unionist politicians, that they lost their case. The Act of Union has been modified, as unionists feared, but this is not the victory people wanted.

Many hope that the higher courts will overturn Justice Colton’s decision. If they don’t? Unionists will have to grapple with an uncomfortable truth: altering the relationship between Northern Ireland and Britain is not only lawful but in accordance with constitution of the United Kingdom.