A Constitutional Showdown- Unionism’s Protocol challenge reaches the Court of Appeal

A Constitutional showdown begins on Monday (11th October) in the Court of Appeal as Unionism takes another step towards the ultimate Supreme Court battle for the soul of the Union.

A Constitutional Showdown- Unionism’s Protocol challenge reaches the Court of Appeal

By Jamie Bryson

Introduction

The ‘Protocol case’ is a challenge to the provisions of the Northern Ireland Protocol, given direct effect in domestic law via s7A of the Withdrawal Act 2018 (as amended by the 2020 Act). The applicants argue that the Protocol is unlawful on a number of grounds, which includes a challenge to the making of this part of the treaty with the European Union (‘EU’) itself due to the conflict with primary legislation in the form of Article VI of the Act of Union.

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This case is an appeal from a first instance decision of Colton J which rejected all the applicant’s grounds of challenge.

There are huge constitutional implications to the case, including in relation to the scope of the principle of consent enshrined within the Belfast Agreement, given effect via section 1 (1) of the NI Act 1998.

It is the biggest constitutional law case in relation to Northern Ireland since the House of Lords (the forerunner to the United Kingdom Supreme Court) case of Robinson in 2002. As a point of interest Mr Robinson’s senior counsel in that case was John Larkin QC (who leads the applicant’s case), who led his then junior David Scoffield who later became an eminent senior counsel in his own right and is now a High Court judge.

Who are the parties to the case?

Applicants: The main applicants are TUV leader Jim Allister QC, former MEP Ben Habib and Baroness Kate Hoey. They are supported by former UUP leaders Steve Aiken and Lord Trimble alongside former DUP leader Arlene Foster. All the aforementioned are named on the application.

Respondent: The respondent in the case is the Secretary of State for Northern Ireland (on behalf of the UK Government).

Legal representatives: The applicants are represented by Northern Ireland’s former Attorney General and constitutional law expert John Larkin QC, who leads Denise Kiley BL.

The respondent is represented by senior Crown counsel Dr Tony McGleenan QC, who leads Philip Mateer BL.

When will the case be heard?

The case is presently listed for a two-day hearing on 11 and 12 October 2021, however the case may run into a third day.

Who will be hearing the case?

The case will be heard by the Court of Appeal consisting of Lady Chief Justice Dame Siobhan Keegan, Lord Justice Bernard McCloskey and Lord Justice Seamus Treacy. As an added point of interest for avid followers of Northern Ireland courts, Treacy LJ and McCloskey LJ- two experienced and well-regarded judicial figures- are known to have very different styles and views on the law.

Whilst a practising Barrister Seamus Treacy QC challenged the requirement for Queens Counsel to swear an oath to the Queen, stating that as a nationalist this did not respect his identity. Following his appointment as Lord Justice of Appeal, Sir Seamus Treacy automatically became a member of Her Majesty’s Privy Council in February 2018. For unexplained reasons, Treacy LJ resigned from the Privy Council in April 2018.

What are the grounds of appeal?

The applicants advanced five primary grounds of challenge, each of which has a series of sub-grounds. The appeal has sixteen grounds of challenge in which it is submitted Colton J erred in the first instance decision. The key grounds will merely be briefly summarised for the purposes of this basic explainer and should not be taken as a comprehensive overview of those arguments, nor is the omission of the other grounds any indication as to the strength of those arguments.

The learned judge erred in failing to conclude that Article VI of the Acts of Union 1800 had prevented Her Majesty’s Government (‘HMG’) from making an international treaty which breached the provisions of Article VI

It is an accepted legal proposition that the use of a prerogative power (such as that deployed in making an international treaty) can not be exercised in a manner which conflicts with statute (see p55 of Miller 1). The limit (rather than the merit) of the use of a prerogative power is plainly justiciable. If it were not to be so, then the prerogative power would be unlimited and would allow the Executive branch (Government) to unilaterally override the will of Parliament (in so far as acting contrary to primary legislation).

The Acts of Union Article VI requires that all parts of the United Kingdom be on an equal footing, inter alia, in matters of trade and treaties. The NI Protocol breaches this requirement enshrined within the UK’s foundational constitutional statute. Therefore, HMG had no power to make a treaty which conflicted with these provisions.

The learned judge erred in failing to conclude that none of the steps required by section 13 of the EU (Withdrawal) Act 2018 could absolve HMG of the requirement to comply with Article VI of the Acts of Union

Parliament could have ‘absolved’ HMG for the unlawful use of the prerogative power by clearly and expressly doing so in primary legislation. They did not do so. Moreover, the evidence actually points firmly away from any conclusion that Parliament intended to impliedly repeal Article VI, or knew of the constraints therein.

The learned judge erred in concluding that Article VI of the Acts of Union had been impliedly repealed by section 7A of the EU (Withdrawal) Act 2018

This ground encompasses the ‘making new law’ finding of Colton J which reconciled the conflict between two constitutional statutes by finding that the later statute could by implication repeal the clear provisions of an earlier constitutional statute. The accepted legal principle is that constitutional statutes can only be repealed by clear and express words, however when faced with the conflict between two constitutional statutes, Colton J found that implied repeal was possible. It is trite to point out that Colton J’s finding that there was a conflict between the 2018 Act and the Acts of Union means the irresistible logic is that the making of the treaty (which came before the 2018 Act) was in a manner which conflicted with statute and thus was an unlawful use of the prerogative power.

The learned judge erred in failing to conclude that section 1 (1) of the NI Act 1998 (‘the 1998 Act’) has no impact on the changes effected by the NI Protocol

This is a key constitutional challenge. It goes to the scope of the ‘principle of consent’ and whether this key safeguard (as sold to the unionist community) does in fact protect the substance of the Union, or merely the symbolism. In short, can you change everything but the last thing without offending the principle of consent?

If Colton J is correct on s1 (1) of the NI Act, then the principle of consent is a deceptive snare. It protects solely against the symbolic final handover of sovereignty and does nothing to prevent an incremental dismantling of the substance of the Union.

This, as with the Protocol, means that the very foundation of the Union (the Acts of Union) can be repealed and law-making powers can be handed over to a foreign power without triggering the ‘protections’ within the principle of consent. It is obvious therefore that if powers over NI law-making can be handed to Brussels, the same powers could be handed to Dublin without Unionist consent.

Not even those within unionism who supported the Belfast Agreement believed that the principle of consent in fact meant you could change everything but the last thing. Therefore, this ground of challenge has huge implications for unionism’s support for the Belfast Agreement.

The learned judge erred in concluding that the Protocol on Ireland/Northern Ireland (Democratic consent Process) EU Exit Regulations were validly made and the learned Judge erred in concluding that the Protocol on Ireland/Northern Ireland (Democratic consent process) EU Exit Regulations were compatible with section 10 (1) (a) of the EU (Withdrawal) Act 2018

These grounds of challenge are interlocking and deal primarily with the disapplication of s42 of the NI Act 1998 to ensure that cross community consent for the key decision on the Protocol does not apply. It is a matter of deep controversy that this provision was disapplied, via the insertion of s56A and Schedule 6A to the 1998 Act, for the purposes of nullifying unionist opposition to the imposition of the Protocol.

Section 10 (1) (a) of the 2018 Act requires that the Secretary of State (or any Minister of the Crown or devolved authority) exercising powers under the 2018 Act must act in a manner which is compatible with the terms of the NI Act 1998.

It is an elementary point that one does not act compatibility with the 1998 Act by disapplying one of its key provisions in order to nullify unionism and to empower nationalism.

Has the respondent challenged the first instance decision?

Yes. On 23 September 2021 (arguably out of time) the respondent lodged a cross appeal. This appeal challenges three findings of Colton J:

  • The finding that that GB and NI are not on an equal footing in relation to trade
  • The finding that constitutional statutes have a hierarchical status that displaces usual rules of construction
  • The finding that the applicant’s challenge was justiciable

Does the respondent’s case conflict with the publicly stated position of HMG?

Yes. The arguments advanced in the first instance case by the respondent, and presumably which will be advanced in the appeal, entirely contradict the position of the Prime Minister and Lord Frost in relation to the Protocol.

The Prime Minister has told Parliament that the Acts of Union have not been subject to implied repeal; yet senior counsel acting on behalf of the Government has argued the proposition that the Acts of Union have been subject to implied repealed.

Can the case be watched live?

Yes. The case can be watched via Sightlink. The Sightlink number is accessible via the Court lists. Members of the public are not presently permitted in Court in person.

All those watching proceedings who do not have speaking roles should mute microphones and be cognisant of the Coronavirus Act 2020, which makes it an offence to take photographs of or to record any aspect of the proceedings.

There will be live tweeting of the case via @JamieBrysonCPNI


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