A constitutional coup d’etat: Civil service defiance and the lure of judicial legislating
By Jamie Bryson
Felix Frankfurter has three pieces of advice for those interested in law: Read the statute; read the statute; and read the statute.
He would have found himself confused by the goings on this week in Belfast High Court as two nationalist/republican activists- funded by the public purse- alongside two nationalist/republican dominated councils launched a full frontal assault on the order of Minister Edwin Poots, which instructed officials to halt Irish Sea border checks.
In the courtroom, there was a stark image. It is obvious to point out barristers simply act for their clients, so their personal preferences cannot be deduced from those for who they argue.
However, on the side of the Protocol (and thus, in effect, nationalism) there was an array of ten barristers (comprising both senior and junior counsel), on the side of Minister Poots and those opposed to the Protocol (and thus unionism) there was only Mr Poot’s senior counsel John Larkin KC, and junior counsel Aidan Sands.
Remarkably, on any fair analysis of the case, it would be hard to argue that the two didn’t best the ten.
It should equally be noted that despite the impression to the contrary, Belfast City Council was not in fact speaking for the council, rather they were representing only nationalist and Alliance councillors, as unionist Cllr not only did not support, but robustly opposed the submissions being made.
Belfast City Council went to court adopting a political and legal position contrary to the wishes of the unionist citizens of the City. Whilst a matter for a different day, that raises some profound issues.
The focus of this piece is about each component of our constitutional system knowing its place, it is therefore worth starting from the point at which that civil servants flagrantly defied an instruction to halt Irish sea border checks by democratically elected Minister Poots.
This led to very real concerns about a politicisation of the civil service. These concerns have been amplified as retired senior civil servants have entered the political arena with writings and views on the Protocol. The personal preference is unmistakable.
That point wont of course be liked by the ‘peace processors’ or the BBC establishment, whose editorial output across all shows is increasingly influenced by nationalist lobbying campaigns- including ‘banning’ contributors of whom nationalism disapprove.
These concerns as to the role of the civil service are nevertheless a true reflection of how many unionists feel, and perhaps the problem with the new ‘elite’ in Northern Ireland is that they believe they know better, and assume it is for them to set the parameters of how unionists are entitled to feel or behave.
Unionists are entitled to ask: who do these civil servants think they are to defy a democratically elected Minister and instead impose their own political preferences?
And the manner by which Minister Poots was defied was particularly nefarious. The civil servants cobbled together an excuse that they needed a Ministerial direction. Such a direction can only be issued through the Department of Finance, controlled by Sinn Fein.
Put simply; any civil servant who presently wishes to frustrate the will of a unionist Minister can simply smile, say they need a direction, and know that Sinn Fein- who perhaps better reflect their personal political preferences- will ensure such a direction will never be issued.
There are many ways it can be dressed up, but let us summarise it as it is: the Sinn Fein deputy leader Michelle O’Neill called on civil servants not to adhere to Minister Poots order. The civil servants in DAERA defied their own Minister, and ensured his order would not be given effect.
It was a coup d’etat. And it did not end when Mr Justice Colton entered the fray, waving through an application for an injunction by two republican activists who had no more standing to bring the case than the proverbial man on the street.
As we move forward, no doubt those from a unionist tradition will watch closely to ensure the same boundless latitude on standing is applied by the Northern Ireland Judiciary to those who bring politically contentious cases from a pro Union background.
But the civil service coup did not end when an injunction (which was criticised by all unionists) was secured.
The EU shortly thereafter ordered that checks increase (beyond that which is even required by the pernicious Protocol), and low and behold the same civil servants did not even seek the approval of their Minister, instead they gleefully started implementing such diktats from the EU, until they were caught on and the checks had to halt.
It is notable how the same civil servants who defied an order from their actual democratically elected Minister, had no difficultly in acquiescing to a diktat from the unelected EU Commission!
Let us be in no doubt of how concerning it is that not only are the civil service operating to frustrate the will of those elected by the unionist community, but also that the judiciary would wade into the political arena, at the urging of two persons with zero standing to bring a case, to issue an injunction to deprive an instruction of a democratically elected Minister of any effect.
Unionists will, and have, legitimately asked the question: if the order had been issued by a nationalist Minister, would the court have been so quick to intervene?
So that is the background as to how we came to the case today.
At its core the case is simple, but political objectives collide with law, and- for those who may be politically minded on the High Court bench- that creates a circle which needs squaring.
The analysis starts by turning to Regulation 2017/625- but not the updated GB version post Exit Day, but rather the original version. Remember the updated GB version has no applicability to NI, because the EU Law, as it was prior to Exit Day, is what continues to apply in NI.
Article 3 (40) of regulation 2017/625 defines “entering the Union” or “entry into the Union” (references to the ‘Union’ is to European Union”):
“(40) ‘entering the Union’ or ‘entry into the Union’ means the action of bringing animals and goods into one of the territories that are listed in Annex I to this Regulation from outside these territories, except in relation to the rules referred to in point (g) of Article 1(2) for which these terms mean the action of bringing goods into the ‘Union territory’ as defined in the second subparagraph of Article 1(3) of Regulation (EU) 2016/2031;”
We then turn to Annex 1 of Regulation 2017/625 and to the territories listed: Northern Ireland is included at (28) as part of the United Kingdom of Great Britain and Northern Ireland.
Therefore, when you move goods for example from Liverpool to Belfast, you are not “entering the Union” from one of the territories, rather you are moving within one of the territories. The point of entry into the Union on this definition is when you enter the Republic of Ireland.
That text is clear and unambiguous. It isn’t open to interpretation.
However, nationalists- and indeed DEFRA for the UK Government- don’t like the clear unambiguous words of the relevant provision, so now- so the argument goes- it must be interpreted in order to satisfy the true objective of the Protocol, which is to subjugate Northern Ireland’s place in the United Kingdom.
If you were in any doubt, the submission on behalf of DEFRA was that on matters of trade, “the UK is no longer a unitary state”. In short form, Northern Ireland is carved out and shackled within the realm of the EU. We are, in effect, a colony of the EU nominally under British rule.
But, we are told, never mind the provision designed to give effect to this constitutional abomination doesn’t in fact require checks entering NI – the court is being asked to effectively say: ‘well yes, we know the provision says X, but we really know you meant Y, so we will simply re-write X, so it gives effect to Y’.
Adrian Colton undoubtedly had ambitions to become a fine legislator when he stood for election for the SDLP, but he is in fact now Mr Justice Colton and his responsibility is to apply the law as written, not to re-write it to ensure it is compatible with one part of society’s political objectives.
To his credit, Mr Justice Colton appeared to recognise that point when he said: “it isn’t for me to re-write the legislation”. Let us hope that sentence is given the effect of its unambiguous meaning, and doesn’t transform into ‘it isn’t for me to re-write the legislation, but I am just going to re-write it and call it interpreting it, so I wont therefore be rewriting it’.
In a moment of candour, Mr Justice Colton also remarked upon how Article 4 of the Protocol says one thing, but does another, in relation to the claim to keep Northern Ireland in the UK Customs territory. It in practice does no such thing.
To be fair, Mr Justice Colton is an excellent judge. If you criticise his rulings (and indeed LCJ Keegan last week in her opening of the legal year remarks made clear the judiciary were open to legitimate challenge) I nevertheless do not suspect if you turned up in his courtroom the next day you would receive anything other than a fair hearing. I do not for one moment detect a mean-spiritedness or maliciousness, however these matters on their face do not relate to the personal liberty of any person, and rather are issues of high politics.
And politics is, or should be, confined to the realm of politics. The court in this case is being asked to enter that arena, and essentially fix a plain error- under the guise of ‘interpretation’- to solve a political problem.
Some persons may welcome that: but think it through. If we are now as a society going to be open to judges effectively re-writing the law to suit either their own, or some other, partisan political objective, or even worse in pursuit of some ill-defined and wholly subjective political ‘greater good’, then what is the point of having legislators at all?
If that power is placed in the hands of judges, and make no mistake, that is what is happening in this case, then there must surely be a temptation for any person- no matter how fair minded- to sub consciously seek to find a path to arriving at an ‘interpretation’ which one finds personally palatable.
Rather, if the law is applied as it is plainly written then the judge is doing nothing other than applying the law as it stands. That may have unpalatable political consequences (and in this case, would be a matter of significant discomfort for the pro Protocol movement), but that is a matter for politicians to sort out.
All that being said, I suspect ‘interpretation’ will be deployed as a linguistic cover for what it is truth re-writing the plain text of the legislation.
A bit like Regulation 2013/625- the clear meaning of X will yield to the preferable meaning ‘interpreted’ as Y.