By Jamie Bryson
Ards and North Down Borough Council’s unelected Chief Executive has sought to thwart the wishes of the majority of local elected representatives by spuriously refusing to allow the council (you would be confused for forgetting he serves under the council rather than they are serving under him) to consideration a motion in relation to the non-implementation of the Union-subjugating Protocol. His decision is fundamentally unlawful, as will be addressed further below.
There may been some so-called unionists quietly pleased (don’t think people aren’t reporting back as to what some are saying privately in group meetings or other settings) at the thought some dodgy ‘legal advice’ could offer an escape hatch from being finally forced to actually face up to what true opposition to the Protocol actually requires. Not to worry, their desire for legal advice has not been in vain, indeed they can now have the very best legal advice available (and let’s face it, why would any public body not want the best advice available) thanks to the work of a group of industrious councillors, including UUP former Mayor last year, Cllr Mark Brooks.
A notice of motion has now been tabled in the names of Cllr Stephen Cooper (TUV), Cllr Mark Brooks (UUP), Cllr Stephen Irvine (Ind), Alderman Wesley Irvine (Ind), Alderman Bill Keery. It is inconceivable that the DUP would do anything other than also back this motion given that all it does is ensures the council take proper legal advice, and clearly defines what non-implementation of the Protocol actually requires. No self-respecting unionist genuinely opposed to the Protocol could object to that.
It is as follows:
“That this Council adopts a policy of non-implementation of the Northern Ireland Protocol; instructs officers to carry out a review of all policies and agreements to which the Council is a party which relate to the said Protocol and provides a report to Council on foot of this review to show AND ENSURE implementation is no longer taking place.
“Non-implementation of the NI Protocol shall encompass the implementation, enforcement, or recruitment of staff for same; and of any EU law flowing from any provision of the NI Protocol.
“Council will seek legal advice in relation to all matters relating to the NI Protocol or implementation of EU law referred to in this amendment from the foremost constitutional law expert John Larkin KC”
As will be immediately apparent, the ground is getting narrower.
Now back to Chief Executive Stephen Reid who has seemingly set himself up as high chief of the Borough, flagrantly defying the wishes of elected representatives.
He is wrong in his decision for a number of reasons.
The relevant notice of motion was brought in the names of Alderman Mcllveen, Councillor Kennedy and Alderman Armstrong-Cotter and was in the following terms:
“That this council adopts a policy of non-implementation of the Northern Ireland Protocol; instructs officers to carry out a review of all policies and agreements to which the council is a party which relate to the said Protocol and provides a report to council on foot of this review to show how implementation is no longer taking place”
Under cover of email of 17 October 2022, the Chief Executive cancelled the meeting, claiming, inter alia, the following:
“I have no received legal advice on this matter, which concludes that to consider the motion which if passed would place the council in a position where it would be acting unlawfully and therefore the special council meeting has been cancelled” (underlining added).
The first obvious point is that the consideration of a motion can not in of itself be unlawful. The Chief Executive has firmly nailed his colors to the mast asserting that the mere consideration would be unlawful. He does not, for example, assert that it would be improper because the net effect of it passing would be (in someone’s erroneous view) unlawful, rather it is positively asserted that the decision is made on the basis that to consider the motion itself would be unlawful.
It hardly appears necessary to dilate in great detail on the point that merely considering a motion could not be unlawful, even if one potential outcome would be that the effect that, if passed, it would potentially give rise to the council acting unlawfully. The motion could, for example, be defeated. Therefore, no illegality would ever occur.
Accordingly, the Chief Executive has misdirected himself and made an elementary error. An error which he can not seek to retrospectively ‘correct’ by attributing to himself a different state of mind at the time of the impugned decision than that to which he has committed himself in writing.
The decision to refuse the motion is therefore unlawful on this ground alone.
However, there is a further substantive error in the decision. It is premised upon the basis that a policy of non-implementation of the Protocol would be “unlawful”.
There may well be a debate about this (subject to actually referring to domestic law) in councils in which there is statutory obligations placed upon those councils (and its arguable there is in fact merely contractual obligations) to conduct checks, but that issue does not arise in relation to Ards and North Down Borough Council.
The true position is that Ards and North Down Borough Council have no statutory obligations to implement the Protocol or to do anything under its provisions. The council may well choose to voluntarily enter into arrangements with others such as DAERA or Causeway Coast and Glens Council (acting on behalf of BIESS) to implement the Protocol, but that does not give rise to or create a domestic law legal obligation to implement the Protocol.
It follows therefore that a policy decision not to implement the Protocol would not be unlawful, because there is no legal duty that Ards and North Down Borough Council would be breaching.
This is put beyond all doubt by the fact that many of the relevant MoU’s to which the council are party covering Protocol implementation are voluntary and can be terminated by any party. A decision to terminate is not unlawful, because there is no binding legal obligation to do any of the relevant work at all.
There is a yet further error in the decision of the Chief Executive. The reference in his decision email of 17 October 2022 is to a breach of law (“would be unlawful”) can only relate to domestic law. The Protocol is an instrument of international law. A true reading of the motion binds the council to non-implementation of an international treaty; the council have no (and nor ever could have) legal obligations under international law. Therefore, a motion on the Protocol could not be unlawful as a matter of domestic law, because mere reference to the Protocol without more in fact can only be read as relating to an international treaty which in of itself has no effect in domestic law, and as such is non-justiciable.
Therefore, even if the council did have any obligations under the Protocol (which it does not), these would in fact be obligations pursuant to section 7A of the European Union (Withdrawal) Act 2018, and therefore save for a motion directing itself to “obligations under section 7A of the European Union (Withdrawal) Act 2018” the issue of a breach of domestic law could not possibly arise.
In summary, the decision of the Chief Executive is unlawful for three reasons (each of which alone is enough to render it unsound as a matter of law):
- The Chief Executive has misdirected himself in determining that consideration of the motion would in of itself be unlawful, in circumstances whereby he has been led to the (erroneous) belief that the result of a vote going a particular way would be unlawful. Even if that were so (and in this instance, for reasons set out it does not arise), that still doesn’t have the effect of making the mere consideration of a motion unlawful.
- Ards and North Down Borough Council have no statutory duties or obligations under the Protocol. Any work carried out is voluntary or as a result of contractual arrangements voluntarily entered into with third parties (and which can be unilaterally terminated). Adopting non-implementation of that which the council is in fact under no legal duty to implement is no more unlawful than the proverbial man on the street declaring he or she will not be implementing the Protocol.
- The impugned motion directs itself to “non-implementation of the Northern Ireland Protocol”. On a plain reading of the text of the motion it therefore directs itself to international treaty obligations, which apply as a matter of international law to the sovereign government, not local councils. International treaties do not, in of themselves, have any effect in domestic law. Accordingly, even if the council had obligations flowing from the Protocol (it does not), these would in fact be obligations under section 7A of the European Union (Withdrawal) Act 2018. Therefore, unless a motion (if passed) directed itself to section 7A of the 2018 Act, no question of unlawfulness would in fact arise as the council is not, nor could ever be, bound by international law without domestic law force.
It is hoped the Chief Executive desists from his course of action, the effect of which is to sustain the subjugation of Northern Ireland’s place in the Union and instead leaves the political decisions to the politicians.